Citation Nr: 1300200 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-22 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for multiple sclerosis (MS). 2. Entitlement to an initial evaluation in excess of 10 percent for a multi-level compression fracture of the thoracolumbar spine, prior to March 16, 2011. 3. Entitlement to an initial evaluation in excess of 20 percent for a multi-level compression fracture of the thoracolumbar spine, since March 16, 2011. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from November 1965 to May 1969. He was additionally a member of the Navy and Air Force Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Los Angeles, CA, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part granted service connection for a multi-level thoracolumbar compression fracture, rated 0 percent disabling from March 18, 2005, and denied service connection for MS and a right foot and ankle disability. During the pendency of the appeal, in an April 2009 rating decision, VA awarded the Veteran an increased 10 percent evaluation for his back disability, effective from March 18, 2005. As this represented only a partial grant of the maximum benefit sought, the appeal continued with respect to that issue. AB v. Brown, 6 Vet. App. 35 (1993). In February 2011, the Board remanded the appellate matters to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. The AMC subsequently issued a March 2012 rating decision granting service connection for a right foot and ankle disability, and awarding an increased 20 percent evaluation for the low back disability, effective from March 16, 2011. Again, yet higher evaluations are possible both before and after the assigned effective date, and the Veteran has not expressed his satisfaction with either stage of evaluation. The issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). With regard to the right foot and ankle, the full benefit sought on appeal was granted, and hence there remains no question or controversy for adjudication by the Board. In his July 2007 substantive appeal, the Veteran indicated that he desired a hearing before a Veterans Law Judge, to be held at the RO; such was scheduled, and the Veteran was appropriately notified. However, he withdrew his request in January 2010 correspondence. The issue of service connection for MS is addressed in the REMAND portion of the decision below and is again REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Prior to March 16, 2011, the multi-level compression fracture of the thoracolumbar spine was manifested by limitation of motion in flexion to no worse than 70 degrees, with additional mild functional impairment due to pain, weakness, lack of endurance, fatigability, and incoordination at the extremes of motion, but without the production of incapacitating episodes. 2. Since March 16, 2011, the multi-level compression fracture of the thoracolumbar spine has been manifested by limitation of motion in flexion to no worse than 50 degrees; no additional functional impairment due to pain, weakness, lack of endurance, fatigability, and incoordination was adduced. The production of incapacitating episodes has not been shown. CONCLUSIONS OF LAW 1. The criteria for an increased initial evaluation of 20 percent, but no higher, for a multi-level compression fracture of the thoracolumbar spine, prior to March 16, 2011, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for a multi-level compression fracture of the thoracolumbar spine, since March 16, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection for a multi-level compression fracture of the thoracolumbar spine. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA medical treatment records and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Some service treatment records are associated with the claims file; while, as is discussed in the Remand section below, it appears that efforts to obtain completer records have not been exhaustive, any missing service records are not relevant to the inquiry on appeal with regard to the back. The appeal involves the current status of the back; service records, at best, would show the status of the back in 1982. Given the more than 20 years between service and the effective date of the service connected evaluation, there is no prejudice to the Veteran in the failure to ensure that all available service records have been obtained. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in April 2008 and March 2011; the examiners made all required clinical findings, and have provided an adequate basis for evaluation of the thoracolumbar disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently evaluated under the criteria of Code 5235, for vertebral fracture or dislocation. He has been diagnosed with disc disease related to the compression fractures, and hence either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There is no record of any order or directive from a doctor requiring bed rest or noting any incapacitation due to the back injury. Post service treatment records reflect no periods of bed rest or total incapacitation other than associated with worsening MS. In the absence of any medical statement indicating that bed rest and regular treatment were required for the low back disability, the definition of "incapacitating episode" has not been met at any time during the appellate period. Evaluation under these criteria is therefore not appropriate. Under the alternative General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5239, Note 5. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA treatment records from 1999 to 2012 reveal few specific complaints or findings related to ongoing low back problems. The Veteran's history of compression fractures in service is noted, but treatment for MS and related tetraplegia is the focus of care providers. Any low back problems are masked by MS. Records do show that the Veteran could sit upright in his wheelchair, and there is no finding of abnormal curvature of the spine. He also reported stiffness in the mornings in January 2005. This review includes those records associated with the Veteran's electronic Virtual VA file. Private treatment records for the appellate period have not been presented; it appears that the Veteran has received all treatment at VA after mid-2003. However, a progress note from one provider, dated in August 2003, shows complaints of "on and off back pain." The Veteran reported that low back pain was aggravating his gait problems related to MS. The lumbosacral spine was palpably tender, and pain caused a decreased range of motion. Gait was modified "but not significantly different than in the past." A VA examination was conducted in April 2008. The examiner did not review the claims file, but the Veteran described his in-service injury and reported his MS diagnosis. He reported low back pain following treatment for his injury, without radiation. He reported weakness, but was not sure if such was due to the back or MS. He denied any incapacitating episodes, but did report flare-ups of pain daily, usually at the end of the day. At those times pain was 7-8/10 instead of the normal 3-4/10. The Veteran used a wheelchair and walker for ambulation. He stood with assistance, and had to hold onto a desk to perform range of motion testing. Flexion was to 70 degrees, with pain at the extreme of motion. He could not perform extension or lateral flexion due to imbalance. Rotation was accomplished with support, to 15 degrees bilaterally. The examiner stated that range of motion was limited by pain, weakness, lack of endurance, fatigue, and incoordination at the extremes of movement. Repetitive motion testing was not performed. X-rays showed loss of 40 percent of the vertebral height at T12, with slight increase in kyphosis. Lumbar lordosis was normal, and compression fractures of L1 and L2 were seen, as was degenerative disc disease. The examiner opined that the radiographic evidence was consistent with the reported impairment of the low back, separate from MS. A second VA examination was performed in March 2011. The claims file was reviewed. The Veteran reported progressive worsening of his low back since his initial injury. He described severe flare-ups of the low back every two to three weeks, which were treated with Tylenol with codeine. However, he stated there was no additional functional impairment during flare-ups. The Veteran did report thoracolumbar pain, with decreased motion, weakness, stiffness, fatigue, and spasm. Pain was constant; normally it was mild, but could increase to moderate or severe with bending. There were no incapacitating episodes. On physical examination, posture was normal. Gait could not be evaluated. A kyphosis was noted, but spinal curvature was otherwise normal. There was pain with motion, and tenderness and weakness of the paraspinal muscle was observed. Range of motion testing showed flexion to 50 degrees, and 10 degrees of extension, lateral flexion bilaterally, and lateral rotation bilaterally. There was pain with active motion; the examiner stated that repetitive motion testing could not be performed. The testing which was done was accomplished from a seated position in the Veteran's wheelchair. Some progression of degenerative changes was noted on x-rays, as compared to April 2008. Prior to March 16, 2011 Private and VA treatment records, while not providing detailed findings regarding the Veteran's low back disability, do document regular, chronic complaints of pain and mobility problems associated with the compression fractures throughout the appellate period. In August 2003, a private provider noted some minor impact of the low back on the Veteran's gait. An abnormal gait related to service-connected spine problems merits a 20 percent evaluation. While this notation is for a date outside the evaluation period under consideration here, the competent lay and medical evidence shows advancement of the low back disability since. The Veteran has reported worsening pain and limitations, marked by a need for more medication, and VA examiners have noted the onset of abnormal kyphosis and the advancement of degenerative changes. Finally, the sole measured range of motion for the period prior to March 16, 2011, shows flexion to 70 degrees. This is the only valid measurement available which is listed in the applicable criteria; MS prevented measurement of extension and lateral flexion, and so no combined range could be obtained. The measured range falls within the criteria for a 10 percent evaluation; however, the examiner also noted an increase in pain from the Veteran's reported baseline with movement. Although the doctor did not quantify any additional functional impairment from the pain, the Veteran has reported increased limitations of activity as a result. In light of the evidence of abnormal gait aggravated by the compression fractures, abnormal kyphosis at T12 associated with the fractures, and the evidence of painful limited motion to a greater degree than can be accurately measured, the disability picture presented is found to most closely approximate the criteria for a 20 percent schedular evaluation prior to March 16, 2011. A yet higher, 40 percent evaluation is not warranted unless there is limitation of flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis. As movement remains possible throughout the thoracolumbar spine, a finding of ankylosis or its functional equivalent is not warranted. Further, measured motion far exceeds 30 degrees flexion, and the Veteran has not described impairment approximating such. For example, he continues to be able to sit upright, and can rise and walk briefly with assistance. The posture and gait necessary for such require motion in excess of 30 degrees, even upon consideration of the DeLuca factors. Accordingly, for the period prior to March 16, 2011, an increased 20 percent evaluation for a multi-level compression fracture of the thoracolumbar spine is warranted. Since March 16, 2011 A 20 percent evaluation is assigned based upon the measured 50 degree limitation of flexion noted on VA examination dated in March 2011. As is noted above, the reported abnormal kyphosis would also justify such an evaluation after March 16, 2011. No higher schedular evaluation is warranted unless there is limitation of flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis. At no time does the Veteran or any doctor report ankylosis or describe the functional equivalent of such due to the compression fractures of the spine. The Veteran retains movement and flexibility in his low back; there is no ankylosis. Further, the measured 50 degrees of flexion exceeds the upper limit allowable for an increased evaluation by 20 degrees. The Board has considered the functional impact of pain, weakness, fatigue, lack of endurance, and incoordination on the Veteran's low back, but cannot find that the resulting disability picture more closely reflects the criteria for a 40 percent evaluation. Setting aside the functional problems imposed by MS, the Veteran is able to stand and walk, and maintains good posture when sitting in his wheelchair. The preponderance of the evidence is against the claim; there is no doubt to be resolved. An increased evaluation for a multi-level compression fracture of the thoracolumbar spine since March 16, 2011, is not warranted. Extraschedular Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the rating criteria permit higher schedular evaluations than are currently assigned for additional signs and symptoms of disability, or greater degrees of disability. The criteria, as applied and considering the DeLuca factors, fully encompass the Veteran's complaints and the clinical findings related to the service-connected low back disability. The Schedular criteria are adequate, and no further discussion of 38 C.F.R. § 3.321 is required. ORDER An initial increased evaluation of 20 percent, but no higher, for a multi-level compression fracture of the thoracolumbar spine, prior to March 16, 2011, is granted. An initial evaluation in excess of 20 percent for a multi-level compression fracture of the thoracolumbar spine, since March 16, 2011, is denied. REMAND With regard to the claim of service connection for MS, remand is required for further development. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has argued that he is entitled to service connection for MS based on a presumption. MS is a listed chronic disease subject to service connection if manifested to a compensable degree within seven years of the date of separation from active duty service. 38 C.F.R. §§ 3.307(a); 3.309(a). The Veteran separated from active duty with the Navy in January 1975; if MS is shown to have been manifested, even if not officially diagnosed, prior to January 1982, the Veteran may benefit from the presumption. A review of the claims file reveals that the Veteran had service as a member of the Navy and Air Force Reserves from February 1976 to October 1982. Service personnel records covering this period are associated with the claims file. However, service treatment records end with the Veteran's initial active duty separation in January 1975. Service treatment records from then to 1982 would potentially include important information and corroboration regarding the onset of MS symptoms in the presumptive period. The RO did request complete medical records, but the nature of the request is limited to a single branch of service, and only the initial period of service was indicated in the communication. It is unclear if this request would have encompassed the Reserve periods and branches. On remand, specific requests addressing the Reserve periods must be made. Moreover, even if the initial request for records would have included the reserve records, VA has failed to properly comply with the development requirements for such evidence. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Efforts may stop only when the records are obtained or it can be certified that the records are not available and further attempts would be futile. 38 C.F.R. § 3.159(c)(2). No certification of unavailability is contained in the record, and the Veteran was not informed the records are not available, or how to submit alternative evidence. VA Adjudication Procedures Manual M21-1MR, I.1.C.5.f and III.iii.2.I.59. Accordingly, the case is REMANDED for the following action: 1. Submit an appropriate request to the National Personnel Records Center (NPRC) or other appropriate custodian for the Veteran's complete service treatment records, to include his period of reserve service with the Air Force (February 1976 to October 1976) and the Navy (October 1976 to October 1982). Document all efforts to obtain such in the record. If such records are not available, written certification is required, and the Veteran must be properly notified. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs