Citation Nr: 1300508 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 06-36 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypercholesterolemia. 2. Entitlement to service connection for right hip disability. 3. Entitlement to service connection for left hip disability, to include on a secondary basis. 4. Entitlement to service connection for bilateral neuropathy and radiculopathy of the lower extremities. 5. Entitlement to service connection for neuropsychiatric condition, claimed as depression, to include on a secondary basis. 6. Entitlement to service connection for degenerative joint disease of the right knee, to include on a secondary basis. 7. Entitlement to service connection for degenerative joint disease of the left knee, to include on a secondary basis. 8. Entitlement to service connection for cervical spine disability, to include on a secondary basis. 9. Entitlement to service connection for bulging disc and herniation, to include on a secondary basis. 10. Entitlement to service connection for degenerative changes of the right ankle, to include on a secondary basis. 11. Entitlement to service connection for degenerative changes of the left ankle, to include on a secondary basis. 12. Entitlement to service connection for thoracic paravertebral myositis, also claimed as thoracic lordosis, to include on a secondary basis. 13. Entitlement to an initial rating in excess of 20 percent for lumbar spine disability. ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to January 2004. He also has four months and one day of prior active service. In addition, he had prior service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran was scheduled to appear for a RO hearing in June 2011. However, he failed to report for this hearing and provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. In October 2012, the Veteran submitted additional evidence, and waived RO consideration of that evidence. The issues of entitlement to service connection for a neuropsychiatric condition, degenerative joint disease of the both knees, cervical spine disability, bulging disc and herniation, degenerative changes of the both ankles, thoracic paravertebral myositis, and bilateral neuropathy and radiculopathy of the lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypercholesterolemia is not a disability for VA benefits purposes. 2. The Veteran's bilateral hip pain is a subjective complaint (symptom) that has not been attributed to an underlying diagnosed hip disability. 3. The Veteran's low back disability has not demonstrated forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis; nor are there incapacitating episodes between four and six weeks per year. CONCLUSIONS OF LAW 1. Service connection for hypercholesterolemia is not warranted. 38 U.S.C.A. §§ 1110, 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Service connection for a right hip disability is not warranted. 38 U.S.C.A. §§ 1110, 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. Service connection for a left hip disability is not warranted. 38 U.S.C.A. §§ 1110, 1110 (West 2002 & Supp. 2012 ); 38 C.F.R. § 3.303 (2012). 4. The criteria for an evaluation in excess of 20 percent for low back disability have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 4.1-4 .14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The duty to notify regarding the right hip condition was satisfied by a March 2005 letter. This letter fully addressed all three notice elements; informed the Veteran of what evidence was required to substantiate his service connection claims; and of the Veteran's and VA's respective duties for obtaining evidence. The duty to notify regarding the left hip condition and hypercholesterolemia was satisfied by an August 2009 letter. The August 2009 letter also advised the Veteran as to how disability ratings and effective dates are awarded, as required in Dingess. See 19 Vet. App. at 486. The lumbar spine disability claim involves a "downstream" issue, as the initial claim for service connection was granted in the rating decision on appeal, and the Veteran disagrees with the evaluation assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of Veteran's service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In light of the uncontroverted facts, as discussed below, the Board finds that the evidence, which indicates that he was not diagnosed with any disability manifested by high cholesterol/hypercholesterolemia, an examination or opinion regarding any nexus to service or to a service-connected disability are unnecessary to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (citing 38 U.S.C.A. § 5103A(d), 38 C.F.R. § 3.159(c)(4)). Multiple examinations failed to find any hip condition. The Veteran was afforded multiple examinations regarding his service-connected lumbar spine disability. Significantly, the record does not otherwise indicate any additional obtainable evidence that is necessary for a fair adjudication of the claim that has not been identified. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis A. Service Connection Claims Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). A private medical statement from Nanette A. Ortiz, M.D., dated in July 2009 reflects that the Veteran had a history of hypercholesterolemia. Hypercholesterolemia is an "excess of cholesterol in the blood." Dorland's Illustrated Medical Dictionary 792 (28th ed. 1994). Hypercholesterolemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc." Id. at 795. Hypercholesterolemia or elevated cholesterol is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). While elevated cholesterol may be evidence of an underlying disability or may later cause disability, service connection may not be granted for a laboratory finding without evidence of a disability manifested by high cholesterol/hypercholesterolemia. The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). There is no evidence of record suggesting the Veteran's elevated cholesterol or hypercholesterolemia causes any impairment of earning capacity. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citation omitted); see 38 U.S.C.A. § 1110 (West 2002). As such, service connection for hypercholesterolemia is not warranted. Turning next to the Veteran's claims for service connection for right and left hip disabilities, his service and post-service treatment records are negative for any diagnosis or treatment of any hip. VA compensation examinations conducted in April 2005, June 2005 and September 2008 were negative for any findings or diagnosis any such condition. Dr. Ortiz, in the July 2009 letter, stated that the Veteran presented with hip pain and his service-connected low back disability caused hip problems. This opinion does not indicate that the Veteran was ever diagnosed to have, or was treated for, a hip condition. Therefore, the opinion does not establish that the Veteran has any current hip disability. A VA examination was conducted in September 2009. After a review of the Veteran's claims file, examination, X-rays, and whole body bone imaging, the examiner stated that bilateral hip examination was negative. A veteran is competent to report that he has pain. However, there is no competent evidence of a present disability manifested by or resulting in a diagnosed disease or disability. A symptom, such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the symptoms of bilateral hip pain can be attributed, there is no basis to find a hip disability or disease for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). A reasonable doubt does not exist regarding the Veteran's hypercholesterolemia and bilateral hip claims. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). B. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Staged ratings can be assigned for a disability for distinct time periods with different ratable symptoms. Fenderson v. West, 12 Vet. App. 119 (1999) 1. Orthopedic Considerations Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees, or when there is muscle spasm, guarding, or localized tenderness that does not result in an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. The Veteran is entitled to the current 20 percent rating, but no higher, since he has displayed forward flexion of 0 to 90 degrees during June 2005 VA examination. He displayed forward flexion of 0 to 50 degrees during September 2008 VA examination. He also displayed forward flexion of 0 to 65 degrees during September 2009 VA examination. No ankylosis has been shown. A higher disability evaluation is not warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, Mitchell, supra. The September 2008 VA examiner noted that repetitive motion limited the Veteran's forward flexion to 50 degrees. At the September 2009 VA examination, the Veteran displayed objective evidence of pain on repetitive motion, however, he did not have additional limitation of motion due to repetitive motion. As such, additional disability based on functional loss has not been shown. 2. Intervertebral Disc Syndrome (IVDS) IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 depending on the number of incapacitating episodes a person has in the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. A 10 percent rating is assigned for incapacitating episodes with a total duration of at least one week but less than two weeks in the past 12 month period; while a 20 percent rating is assigned for incapacitating episodes with a total duration of between two and four weeks in a 12 month period. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. The Veteran, at his September 2009 VA examination stated that he lost two weeks of work due to his low back disability. As such, the criteria for an increased, 40 percent, rating have not been met. 3. Extraschedular Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular evaluation in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria related to limitation of motion and pain adequately describe the severity and symptomatology of the Veteran's disability. The Veteran has not required hospitalization due to the service-connected disability, and marked interference of employment has not been shown. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER The claim for service connection for hypercholesterolemia is denied. The claim for service connection for right hip disability is denied. The claim for service connection for left hip disability is denied. Entitlement to an increased rating for service-connected low back disability is denied. REMAND The Veteran contends that his service-connected low back disability caused his degenerative joint disease of the both knees, cervical spine disability, bulging disc and herniation, degenerative changes of both ankles, and thoracic paravertebral myositis. In addition, he contends that the low back disability also caused his depression. Service connection is permissible on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). This includes situations where a service-connected condition has chronically, meaning permanently, aggravated the claimed disability, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b), effective October 10, 2006. 71 Fed. Reg. 52,744-47 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical opinions of record do not address the question of aggravation. This should be accomplished on remand. In addition, VA examinations in 2008 and 2009, appear inconsistent as to the presence of any neurologic component of the Veteran's back disorder. In 2008, the diagnoses included "clinical evidence of bilateral radiculopathy," and in 2009 the examiner indicated there was normal muscle and neurologic findings. This should be clarified. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the records of any pertinent VA treatment the Veteran received dated since 2006. 2. Thereafter, if still available, return the claims file to the September 2009 VA joints examiner so this examiner may provide supplemental opinion. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from a different examiner. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the examiner's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided with review of the c-file. The examiner should provide an opinion as to whether it is at least as likely as not that any current degenerative joint disease of the both knees, cervical spine disability, bulging disc and herniation, degenerative changes of both ankles, and thoracic paravertebral myositis was aggravated (permanently increased in severity) by the Veteran's low back disability. If aggravation is found present, the examiner should address the following medical issues: (a) the baseline manifestations of the disabilities prior to the aggravation, and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected low back disability based on medical considerations. The examiner should provide a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner should also attempt to reconcile the results of the September 2008 examination diagnosing "clinical evidence of bilateral radiculopathy," with his opinion that there is no evidence of such a problem. 3. If still available, also return the claims file to the September 2009 VA mental disorders examiner so this examiner may provide supplemental opinion. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from a different examiner. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the examiner's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided with review of the c-file. The examiner should provide an opinion as to whether it is at least as likely as not that any current psychiatric disorder was aggravated (permanently increased in severity) by the Veteran's low back disability. If aggravation is found present, the examiner should address the following medical issues: (a) the baseline manifestations of the Veteran's psychiatric disorder found present prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected low back disability based on medical considerations. The examiner should provide a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Then, readjudicate the claims in light of the additional evidence. If any disposition remains unfavorable, send the Veteran a supplemental statement of the case (SSOC) and give him an opportunity to respond before returning the file to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs