Citation Nr: 1304010	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  10-33 281	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral bursitis.

2.  Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral bursitis.

3.  Entitlement to an initial disability rating in excess of 10 percent for left shoulder tendonitis.

4.  Entitlement to an initial compensable disability rating for left big toe ingrown toenail and status post right big toe ingrown toenail removal.

5.  Entitlement to an initial compensable disability rating for bilateral varicocele.

6.  Entitlement to an initial compensable disability rating for left foot, third and fourth toe hammertoes.

7.  Entitlement to an initial compensable disability rating for right foot, third and fourth toe hammertoes.

8.  Entitlement to an initial disability rating in excess of 20 percent for lumbar strain.  

9.  Entitlement to an initial disability rating in excess of 10 percent for social anxiety disorder with insomnia and circadian rhythm sleep disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2000 to December 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which currently has jurisdiction over the Veteran's claims, as part of the Benefits Delivery at Discharge (BDD) program.

In August 2011, the Veteran testified at a video hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.  The VA Form 9 shows that the Veteran requested a Travel Board hearing.  However, during the August 2011 hearing, the Veteran testified that he was satisfied with a video hearing in lieu of a Travel Board hearing.  

In August 2011, the Veteran submitted additional private medical evidence accompanied by a written waiver of initial RO consideration of the evidence.  This evidence thus is accepted for inclusion in the record on appeal.

In a June 30, 2010 rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD), migraines, right ankle disorder, and bilateral plantar fasciitis.  The Veteran was notified of the decision in a July 2, 2010 letter.  The Veteran submitted a timely notice of disagreement in August 2010.  The RO issued a Statement of the Case on March 29, 2011, denying the claims for service connection.  The RO received a VA Form 9 on August 22, 2011 with respect to the issues of service connection for migraines, right ankle disorder, and bilateral plantar fasciitis.  The Veteran was notified by an October 2011 letter that the VA Form 9 was untimely.  The Veteran has not appealed the issue of timeliness and, therefore, these issues are not before the Board.

The Board is cognizant of the ruling of the United States Court of Appeals for Veterans' Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  The record shows that the Veteran is employed as an electronics mechanic.  The evidence does not reflect, and the Veteran has not asserted, that he is unemployable.  Accordingly, the Board concludes that a claim for a total rating based on individual unemployability due to service-connected disability is not for appellate consideration.

The issue of entitlement to an initial disability rating in excess of 10 percent for social anxiety disorder with insomnia and circadian rhythm sleep disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  During the August 2011 hearing, as shown in the hearing transcript, the Veteran withdrew his appeal with respect to the claims for higher initial ratings for left knee patellofemoral bursitis, right knee patellofemoral bursitis, left shoulder tendonitis, left big toe ingrown toenail and status post right big toe ingrown toenail removal, bilateral varicocele, left foot third and fourth toe hammertoes, and right foot third and fourth toe hammertoes.

2.  Prior to September 27, 2010, the Veteran's lumbar strain is manifested by forward flexion to 80 degrees, and complaints of pain and weakness, but is not manifested by forward flexion of the thoracolumbar spine of 60 degrees or less; or, combined range of motion of the thoracolumbar spine of 120 degrees or less; 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; or ankylosis; or, incapacitating episodes requiring physician prescribed bed rest.  

3.  From September 27, 2010, the Veteran's lumbar strain has manifested in complaints of pain, flare-ups, and forward flexion of 45 degrees, but has not manifested in flexion of 30 degrees or less; ankylosis of the thoracolumbar spine; or, incapacitating episodes requiring physician prescribed bed rest.


CONCLUSIONS OF LAW

1.  The appeal as to the claims for entitlement to higher initial disability ratings for left knee patellofemoral bursitis, right knee patellofemoral bursitis, left shoulder tendonitis, left big toe ingrown toenail and status post right big toe ingrown toenail removal, bilateral varicocele, left foot third and fourth toe hammertoes, and right foot third and fourth toe hammertoes are withdrawn and the Board does not have appellate jurisdiction to review the claims.  38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012).

2.  Prior to September 27, 2010, the criteria for an initial disability rating in excess of 10 percent for lumbar strain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012).

3.  Effective September 27, 2010, the criteria for an initial 20 percent disability rating, but no higher, for lumbar strain have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.         38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012).  

In August 2011 at a hearing before the undersigned Veterans Law Judge, the Veteran withdrew his appeal as to the issues of entitlement to higher initial disability ratings for left knee patellofemoral bursitis, right knee patellofemoral bursitis, left shoulder tendonitis, left big toe ingrown toenail and status post right big toe ingrown toenail removal, bilateral varicocele, left foot third and fourth toe hammertoes, and right foot third and fourth toe hammertoes.

As there remains no allegation of error of fact or law for appellate consideration with respect to these claims, the Board does not have appellate jurisdiction to review them and they are dismissed.  38 U.S.C.A. § 7105.
Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The appeal for a higher initial disability rating for the service-connected lumbar strain arises from a disagreement with the initial evaluation following the grant of service connection.  The Veteran was sent a proper notification letter prior to adjudication of the claim as acknowledged by the Veteran in a signed September 2008 response.  The Courts have held that 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).  Therefore, no further notice is needed under VCAA.

The Veteran's service treatment records and identified VA medical treatment record have been obtained.  The Veteran testified during his August 2011 hearing that he receives private medical treatment from Dr. Jillian Rutherford.  Following the hearing, he submitted copies of medical records from Dr. Jillian Rutherford and waived Regional Office review of that evidence.  38 C.F.R. § 20.1304(c) (2013).  Also, the Veteran was provided examinations in October 2008 and October 2010.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).  The examinations are adequate because they provided sufficient information to decide the appeal by an examiner with appropriate expertise, and because they addressed the current severity of the Veteran's lumbar strain in conjunction with the applicable VA rating criteria.  38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007).  The Board notes that the September 2010 VA examiner did not have access to the claims file but the examiner noted review of the electronic records and provided the findings necessary to evaluate the Veteran's disability.  Therefore, the Board finds the examination to be sufficient and adequate for rating purposes.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R.           § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board personal hearing, the Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans.  The representative and the Veterans Law Judge (VLJ) asked questions to ascertain the nature of the Veteran's service-connected lumbar strain.  The Statement of the Case and Supplemental Statement of the Case shows that the Veteran has actual knowledge of what is required for an increased rating.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran have suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

There is no indication in the record that any additional evidence relevant to the issue on appeal 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, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Initial Rating

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A.    § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Lumbosacral or cervical strain is rated under Diagnostic Code 5237.  Diagnostic Code 5237 refers to the general rating formula for diseases and injuries of the spine.  The general rating formula for diseases and injuries of the spine provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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.

Under the general rating formula for diseases and injuries of the spine, ratings related to the thoracolumbar spine are assigned as follows: A 10 percent rating is warranted 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 is warranted for forward flexion of the thoracolumbar spine 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 favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.     38 C.F.R. § 4.71a.

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  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.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under 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 method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by 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.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

The Veteran was provided an examination in October 2008.  The Veteran reported stiffness as a symptom and experienced pain.  He had no numbness, loss of bladder control, or loss of bowel control.  He reported pain in the lower back which occurred three times per week and each time lasted for two hours.  The pain was localized and sharp.  From 1 to 10, the pain level was at 10.  The pain can be elicited by physical activity and is relieved by rest.  At the time of pain, he can function without medication.  The Veteran was not receiving any treatment for his condition and stated that the condition has not resulted in any incapacitation.  The Veteran reported a functional impairment of not being able to bend over without pain and experiencing pain when lifting heavy objects.  On physical examination, there was no evidence of radiating pain on movement and muscle spasm was absent.  No tenderness was noted.  There was a negative straight leg raising test on the right and the left.  There was no ankylosis of the lumbar spine.  The Veteran's spine exhibited flexion to 80 degrees with pain beginning at 80 degrees, extension to 25 degrees with pain beginning at 25 degrees, right lateral flexion to 15 degrees with pain beginning at 15 degrees, left lateral flexion to 20 degrees with pain beginning at 20 degrees, right rotation to 25 degrees with pain beginning at 25 degrees, and left rotation to 25 degrees with pain beginning at 25 degrees.  The joint function of the spine was limited by pain and pain had the major functional impact.  It was not additionally limited by the following after repetitive use:  fatigue, weakness, lack of endurance, or incoordination.  There was no additional limitation in degrees.  The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine.  There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  The neurological examination revealed that motor function was within normal limits and sensory function was within normal limits.  The October 2008 x-ray of the lumbar spine showed a mild left convex upper lumbar curvature, but the lumbar spine otherwise had a normal appearance.

The January 2010 private treatment record noted that the neurological examination was within normal limits and the Veteran had normal gait and range of motion of the joints and spine.  It was noted that the Veteran complained of back pain.  The August 2010 private treatment record again noted that the sensory, motor, and cerebellar functions were normal. 
The Veteran was provided a VA examination on September 27, 2010.  The Veteran reported that lumbar flare-ups of pain were worse and occurred when he was bending forward.  They often caused pain to extend up the right side of his back
3-4 times a week.  Once or twice monthly, the pain extends down the posterior aspect of the right lower extremity.  Limitation of motion was variable depending on the intensity of the pain flare-ups.  The flare-ups often were accompanied by spasm.  There was no weakness, incoordination, fatigue, assistive devices, incapacitating episodes, bowel or bladder incontinence, erectile dysfunction, neoplasm, hospitalization or surgery.  NSAID medications relieved pain temporarily without side effects.  On examination, there was approximately 50 percent loss of lumbar lordosis.  There was no scoliosis.  There was mild upper lumbar paraspinous muscle spasm without tenderness.  Repetitive motion caused stiffness and mild pain with all degrees of flexion and extension, but no fatigue, weakness, incoordination or additional limitation of motion.  The spine exhibited flexion to 45 degrees and extension to 25 degrees.  Left and right tilt and left and right rotation each is 0-30 degrees.  Straight leg raising test was negative to 90 degrees bilaterally.  Deep tendon reflexes were 2+ and symmetrical.  There was no numbness, weakness or atrophy of the lower extremities. The assessment was listed as lumbar strain with limited motion.  There were no functional limitations of daily activities or occupation.

The Veteran testified that he experiences pain that shoots up his spine and down his right leg and he usually has to lie down for a period of time to not have it hurt anymore.  He also reported that if he lifts objects, he can be incapacitated to the point where he cannot really go anywhere.  He stated that it lasts a couple of hours.

As will be discussed below, the Board finds that the Veteran's lumbar strain warrants the assignment of an initial disability rating of 20 percent, effective September 27, 2010.  See Fenderson, supra.  However, prior to September 27, 2010, an initial disability rating in excess of 10 percent is not warranted.  

To warrant a higher disability rating of 20 percent, the evidence must show forward flexion of the thoracolumbar spine 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.  Prior to September 27, 2010, the evidence does not reveal findings of flexion of 60 degrees or less, combined range of motion of 120 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The October 2008 examination report shows flexion to 80 degrees, combined range of motion findings of greater than 120 degrees, and normal curves of the spine.  The private medical records dated prior to September 27, 2010, also noted that the Veteran had a normal gait.  Therefore, prior to September 27, 2010, the Veteran's disability does not meet the criteria for an initial disability rating in excess of 10 percent. 

Further, the evidence does not reveal findings of ankylosis or incapacitating episodes to warrant a higher disability rating.  The October 2008 VA examiner noted that there was no ankylosis and the Veteran did not report incapacitation.  The examiner also noted that there were no signs of intervertebral disc syndrome.  Therefore, prior to September 27, 2010, an initial disability rating in excess of 10 percent for lumbar strain is not warranted.  The Veteran's disability is more akin to the criteria for the assigned 10 percent disability rating.

The Board has considered functional loss in accordance with VA regulations and Deluca.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although the Veteran complained of pain and stiffness, the October 2008 VA examiner determined that the joint function of the spine was limited by pain, but was not additionally limited by the following after repetitive use:  fatigue, weakness, lack of endurance, or incoordination.  There was no additional limitation in degrees.  The Board finds that the Veteran's initial disability rating of 10 percent encompasses the Veteran's pain and functional loss.  Therefore, the Board finds that an initial rating in excess of 10 percent is not warranted.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, id.

Prior to September 27, 2010, the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for service-connected lumbar strain.  The benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

However, the Board finds that the Veteran's service-connected lumbar strain warrants a higher initial disability rating of 20 percent, effective September 27, 2010, the date of the VA examination.  To warrant a 20 percent disability rating, the evidence must show forward flexion of the thoracolumbar spine 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.  Here, the September 27, 2010 VA examination report shows that the Veteran's spine exhibited flexion to 45 degrees.  Therefore, an initial disability rating of 20 percent is granted.  

However, the evidence does not reveal findings of ankylosis or flexion to 30 degrees or less to warrant an initial disability rating in excess of 20 percent.  Thus, an initial disability rating in excess of 20 percent from September 27, 2010 is not warranted.

The Board has considered functional loss in accordance with VA regulations and Deluca.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Veteran has reported that he experiences flare-ups, pain, and spasms.  The Board notes that the Veteran had pain at all degrees of range of motion at the September 2010 VA examination.  However, the evidence does not establish that the Veteran is limited to the degree that would warrant a disability rating in excess of 20 percent.  The VA examiner determined that there was no weakness, fatigability, or lack of endurance following repetitive motion.  There was also no additional limitation of motion after repetitive motion.  The Board finds that the Veteran's initial disability rating of 20 percent, from September 27, 2010, encompasses the Veteran's pain and functional loss.  Therefore, the Board finds that an initial rating in excess of 20 percent is not warranted.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, id.

The Board has considered whether a higher disability rating could be assigned under Diagnostic Code 5243, intervertebral disc syndrome.  The Veteran testified regarding his complaint of incapacitating episodes that can last for hours.  However, the evidence does not reveal incapacitating episodes requiring physician prescribed bed rest.  Further, the record does not establish a diagnosis of intervertebral disc syndrome.  Accordingly, an initial disability rating in excess of 20 percent is not warranted under Diagnostic Code 5243.

The Board has also considered the Veteran's statements that his disability warrants a higher disability rating.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  The medical evidence includes the Veteran's reported symptoms, including his reports of flare-ups and pain, and provided the findings with respect to his spine in accordance with the rating criteria.  Although the Veteran may feel that he is entitled to a higher rating, the Board finds that the reported symptoms and medical evidence are more akin to an initial disability rating of 10 percent prior to September 27, 2010 and a 20 percent disability rating, but no higher, from September 27, 2010.  

In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for an initial 20 percent disability rating from September 27, 2010, and a higher initial disability rating is not warranted.  A preponderance of the evidence is against the assignment of an initial disability rating in excess of 20 percent for service-connected lumbar strain and the claim must be denied.             38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).        

The Board also finds that a separate disability rating is not warranted for a neurological disability because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected lumbar strain.  In this regard, the Board acknowledges the Veteran's complaints of pain radiating down his right lower extremity.  Indeed, the most recent examiner noted the Veteran's complaint of pain radiating down his extremity.  However, the examiner did not diagnose a separate neurological disability.  The neurological examinations of the Veteran as documented in October 2008 and September 2010 were normal.  The private treatment records also reveal normal neurological findings.  Therefore, the Board concludes that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders.  See Bierman v. Brown, 6 Vet. App. at 129-132 (1994).

Extraschedular Consideration

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.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular ratings assigned for the Veteran's service-connected lumbar strain are adequate.  As noted above, the Veteran was assigned a 10 percent disability rating prior to September 27, 2010 and assigned a 20 percent disability rating, effective September 27, 2010.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present.  The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disability.  Even if the schedular criteria were inadequate, he has not required hospitalization for his disability.  With respect to employment, the evidence does not establish that the interference with work caused by his service-connected disability could be considered above and beyond that contemplated by the schedular ratings assigned to the disability.  Indeed, the Veteran reported that he has not lost time at work.  In addition, the September 2010 VA examiner explained that there were no effects on his occupation.  See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).  Therefore, referral to the Director of Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. 


ORDER

The issue of entitlement to an initial disability rating in excess of 10 percent for service-connected left knee patellofemoral bursitis is dismissed.

The issue of entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral bursitis is dismissed.

The issue of entitlement to an initial disability rating in excess of 10 percent for left shoulder tendonitis is dismissed.

The issue of entitlement to an initial compensable disability rating for left big toe ingrown toenail and status post right big toe ingrown toenail removal is dismissed.

The issue of entitlement to an initial compensable disability rating for bilateral varicocele is dismissed.

The issue of entitlement to an initial compensable disability rating for left foot, third and fourth toe hammertoes is dismissed.

The issue of entitlement to an initial compensable disability rating for right foot, third and fourth toe hammertoes is dismissed.

Prior to September 27, 2010, entitlement to an initial disability in excess of 10 percent for lumbar strain is denied.

Effective September 27, 2010, entitlement to a disability rating of 20 percent, but no higher, for lumbar strain is granted, subject to subject to controlling regulations applicable to the payment of monetary benefits.  


REMAND

The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to an initial disability rating in excess of 10 percent for social anxiety disorder with insomnia and circadian rhythm sleep disorder.  The Veteran was provided examinations in October 2008 and October 2010.  The examiners both noted that the Veteran had mild and transient symptoms.  However, during the August 2011 hearing, the Veteran and his wife testified that he experienced memory loss with people's names and dates.  He stated that he was experiencing panic attacks weekly.  The Board notes that these symptoms are included in the criteria for disability ratings in excess of 10 percent and were not discussed during the prior VA examinations.  See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.  In light of the Veteran's testimony as to his current symptomatology that indicates a change in his service-connected disability, a new VA examination is required so that the current severity of the Veteran's service-connected social anxiety disorder with insomnia and circadian rhythm sleep disorder may be determined.  See Weggenmann v. Brown, 5 Vet. App. 281 (1993).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected social anxiety disorder with insomnia and circadian rhythm sleep disorder.

All necessary tests and studies should be accomplished.   
The examiner should report the extent of the Veteran's disability in accordance with the rating criteria, including providing a global assessment of functioning (GAF) score.

A complete rationale must be provided for any opinion offered.

2.  Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

3.  After completion of the above and any other development the RO should deem necessary, the RO should review the expanded record and determine if a higher rating for the disability on appeal may be granted.   If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case.  A reasonable period of time should be allowed for response before the appeal is returned to the Board.


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).




______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs