Citation Nr: 1300898 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-24 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Beginning December 8, 2008, entitlement to a rating in excess of 20 percent for degenerative disc disease of the thoracic and lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the Marines from August 1977 to January 1979. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2010, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In a February 2011 and March 2012, the Board remanded the issue of entitlement to a disability rating in excess of 20 percent from December 8, 2008. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record. As discussed in further detail in the REMAND section below, the Veteran has reasonably raised the issue of TDIU in a recent statement. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending initial rating claim for right foot fracture residuals, and is listing the raised TDIU claim as an issue on appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From December 8, 2008, the Veteran's degenerative joint and degenerative disc disease of the thoracic and lumbar spine has been productive of forward flexion of the thoracolumbar spine of 75 degrees, but has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, with favorable ankylosis of the entire thoracolumbar, or productive of any incapacitating episodes. CONCLUSION OF LAW From December 8, 2008 the criteria for a rating in excess of 20 percent rating for the Veteran's degenerative joint and degenerative disc disease of the thoracic and lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in April 2006. Subsequently, in March 2007, the RO adjudicated the Veteran's claims in the first instance. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA treatment record, and his lay statements of argument have been obtained. Pertinently, the Veteran has not indicated that any other private or VA treatment reports relevant to his hearing loss and tinnitus claims currently exist. With respect to the April 2012 VA examination report, which addressed the current level of severity of the Veteran's back disability, the Board concludes that the findings contained therein are more than adequate to make an informed decision on the merits of each claim. The report of examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. The Board therefore concludes that the evidence of record is sufficient to rate the Veteran's disability under the appropriate rating criteria. See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c) (4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of this issue has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2012). He has retained the services of a representative, and declined an opportunity for a personal hearing. Accordingly, the Board will address the claims on appeal. Legal Criteria The Veteran essentially contends that for the period from December 8, 2008, that his degenerative joint and degenerative disc disease of the thoracic and lumbar spine is more disabling than contemplated by the current 20 percent disability evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board has evaluated the Veteran's spine disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. The General Rating Formula for Diseases and Injuries of the Spine, 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 as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 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 (20 percent); For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. See also 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 20 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. The April 2012 VA examination report specifically noted that there were no incapacitating episodes, and no episodes have been noted at any time during the applicable period. Accordingly, the Veteran is not entitled to a rating higher based upon incapacitating episodes. Analysis As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic manifestations. (The Board notes that the Veteran is receiving separation evaluations for meralgia paresthetica of the right and left lower extremities associated with degenerative disc disease of the thoracic and lumbar spine, which have not been appealed at this time, and therefore will not evaluate his neurological manifestations herein). Turning to the orthopedic manifestations, on December 8, 2008, the Veteran demonstrated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (32 degrees) and the combined range of motion of the thoracolumbar spine was not greater than 120 degrees (the December 2008 record is unclear as to whether the combined range of motion was 118 or 120 degrees). These findings are consistent with the 20 percent disability assigned. The Board notes that a February 2009 VA treatment record noted that spine had limited range of motion, but did not show quantified spinal range of motion. During VA examination in March 2009, the Veteran reported that he had to "baby his back" and that his back would pop when he lift something wrong. Sitting for long periods of time caused numbness. MRI revealed a disk herniation at L4-5. He had no history of fecal or urinary incontinence. The Veteran complained of a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain. The pain was located in the lower thoracic region and was described as daily and constant and was "above moderate" in severity. He also complied of constant pain in the lumbar spine. He report severe flare-ups. Depending on activity, he could between 2 days and 1 1/2 months between flare-ups. He reported that the flare-ups would last between 2 days and 2 month in duration. He used a cane, but had no limitation to walking. Posture of the spine was normal and symmetrical in appearance. Likewise, the Veteran's gait was normal. While muscle spasm was noted, the examiner observed that muscle spasm, localized tenderness, or guarding was not severe enough to be responsible for an abnormal gait or spinal contour. Muscle tone was normal and there was no muscle atrophy. Range of motion revealed flexion from 0 to 47 degrees; extension from 0 to 12 degrees; left lateral flexion from 0 to 20 degrees; left lateral rotation from 0 to 25 degrees; right lateral flexion from 0 to 20 degrees; and right lateral rotation from 0 to 25 degrees. While the examiner observed pain on active range of motion and after repetitive motion, there was no additional limitation after three repetitions of range of motion. Without evidence of A February 2009 VA treatment record noted that spine had limited range of motion, but did not show quantified spinal range of motion. On an April 2012 VA examination the examiner noted that the Veteran demonstrated thoracic-lumbar spine range of motion of flexion from 0 to 75 degrees, extension from 0 to 25 degrees, bilateral lateral flexion from 0 to 30 degrees, and bilateral lateral rotation from 0 to 30 degrees. There was no pain with motion. There was no additional loss of range of motion or functional loss on repetitive use. The examiner noted that the Veteran had a normal gait, posture, head position, symmetry in appearance, and without abnormal spinal curvatures. Additionally, he did not have atrophy, guarding, tenderness, nor weakness; nor did he have muscle spasms, localized tenderness or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Based upon the evidence, the Board finds that the criteria for a higher rating than a 20 percent evaluation have not been met. The Veteran has not been shown to have forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine as he has had the ability to flex, extend, laterally flex, and laterally rotate. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Consideration has been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. While the Veteran complained of painful motion and flare-ups during his March 2009 examination, the examiner observed no additional functional limitation after repeated range of motion testing. Likewise, the April 2012 VA examiner report noted that there was no additional limitation of motion on repetitive use of the joint due to pain, fatigue, weakness, or lack of endurance. Moreover, the Board acknowledges that VA outpatient treatment records show the Veteran was treated for chronic low back pain between 2010 and 2011. However, at the time he was treated for his complaints of low back pain, no actual ranges of motion were noted. Therefore, the Board is unable to identify any clinical findings that would warrant an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45. Therefore, the Board finds that the criteria for a disability evaluation in excess of 20 percent have not been met beginning December 8, 2008. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for his spine disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER From December 8, 2008, entitlement to a rating in excess of 20 percent for degenerative joint and degenerative disc disease of the thoracic and lumbar spine is denied. REMAND There is no question that the issue of TDIU has been reasonably raised by the record. The Veteran has submitted statements wherein he states that he can no longer work due to his service connected disabilities, to include his thoracic and lumbar spine disability. Moreover, VA outpatient treatment records March 2011 note that the treating physician stated that he was referring the Veteran for a functional capacity exam as, in his assessment, he could no longer work due to his back disability and other disabilities, some of which are not service connected. Crucially, as noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In that connection, the issue of entitlement to TDIU should be adjudicated by the AOJ in light of the Court's decision in Rice. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran a VCAA compliant notice letter informing him of the criteria necessary to establish TDIU. 2. Schedule the Veteran for an appropriate VA compensation examination to determine the effect of his service-connected disabilities on his ability to obtain or maintain substantially gainful employment (for TDIU), to include his degenerative joint disease and degenerative disc disease of the thoracic and lumbar spine, and meralgia paresthetica of the bilateral lower extremities. The Veteran's claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. Any tests deemed necessary should be performed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Based on examination findings and other evidence contained in the claims file, the examiner is asked to comment on whether it is at least as likely as not the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities noted above. In making this determination, the examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to obtain or maintain substantially gainful employment in light of the severity of his service-connected disabilities (standing alone). As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Please note that if the Veteran is found to have some degree of unemployability due to nonservice-connected disabilities, please nevertheless include a clear explanation of the current degree (if none, please explain) of unemployability attributable only to the Veteran's service-connected disabilities. 3. Thereafter, adjudicate the claim of entitlement to TDIU. If the benefit is denied, the claim be returned to the Board for appellate adjudication. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs