Citation Nr: 1304530	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  09-08 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 60 percent for degenerative disc disease of the lumbar spine.

2.  Entitlement to an initial disability evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) with peptic ulcer disease (PUD).

3.  Entitlement to an initial disability evaluation in excess of 10 percent for right knee patellofemoral syndrome.

4.  Entitlement to an initial disability evaluation in excess of 10 percent for degenerative changes of the left knee status post anterior cruciate ligament surgery.

5.  Entitlement to an initial disability evaluation in excess of 30 percent for a psychiatric disorder identified as major depressive disorder and mood disorder.

6.  Entitlement to service connection for a left shoulder disorder, to include as secondary to right shoulder impingement syndrome.

REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from July 1985 to August 2007 with an additional 6 years, 10 months, and 8 days of prior active duty service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2011, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge.  A transcript of the hearing was associated with the claims file.  

Thereafter, in August 2011, the Board remanded the above-captioned claims for additional development.  At that time, the Board also referred the issues of entitlement to service connection for diabetes mellitus and entitlement to service connection for a liver disorder, to include as secondary to medications, to the agency of original jurisdiction (AOJ) for appropriate action.  However, as it does not appear that such action has yet been taken, those claims are again referred to the AOJ.

For the reasons that follow, the Board finds that there has been substantial compliance with its prior remand directives with respect to the issue of entitlement to an initial increased low back rating on a schedular basis.  As such, appellate review of that issue may now proceed.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

Conversely, the Veteran's remaining bilateral knee, gastrointestinal, psychiatric, and left shoulder claims all require additional development.  Accordingly, those claims 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.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Throughout the pendency of this appeal, the Veteran's low back disorder, identified as degenerative disc disease of the lumbar spine, has most closely approximated no more than intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

2.  Throughout the pendency of this appeal, the Veteran's low back disorder been productive of orthopedic manifestations that have most closely approximated forward flexion of 30 degrees or less, with no evidence of unfavorable ankylosis of the thoracolumbar spine. 

3.  Throughout the pendency of this appeal, the Veteran's low back disorder has been productive of neurological manifestations that have most closely approximated no more than mild incomplete paralysis of the sciatic nerve, which have been confined to the right lower extremity.


CONCLUSIONS OF LAW

The criteria for an initial schedular evaluation above 60 percent for the Veteran's low back disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.71a, 4.124a, Diagnostic Codes 5235-5243, 8520, 8521, 8522, 8523, 8524, 8525 (2012).

2.  The criteria for a separate rating in excess of 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 

In this case, the Board is only issuing a final decision with respect to the Veteran's claim for an increased schedular rating for his low back disorder, which arose from his disagreement with the initial evaluation assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated; thus, 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).  As such, the Board finds that VA satisfied its duties to notify the Veteran with respect to his low back claim.

Relevant to the duty to assist, the Veteran's service treatment records, as well as his pertinent VA treatment reports, have been obtained and considered.  Additionally, the record reflects that, while the Veteran is currently unemployed, he has not indicated, and the record does not otherwise suggest, that he is in receipt of Social Security Administration (SSA) benefits for any disability.  Accordingly, VA does not have an obligation to obtain any SSA records with respect to his appeal.  Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). 

Nor does VA have an obligation to obtain any other federal or private records in connection with the Veteran's low back claim.  On the contrary, the Veteran has not identified any pertinent outstanding treatment records, despite receiving explicit requests to submit such records or provide information to enable VA to obtain them on his behalf.  Therefore, the Board finds that any failure to obtain those outstanding records - if, indeed, such records exist - is the direct result of the Veteran's own inability or unwillingness to cooperate.  The Board reminds the appellant that the duty to assist is not a one-way street.  On the contrary, if the appellant wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 

Next, the Board is cognizant that the duty to assist includes the duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4).  In this case, VA has  afforded the Veteran multiple examinations, which have yielded clinical evidence relevant in deciding his claim for an initial increased rating for a low back disorder on a schedular basis.  While the Veteran has expressed disagreement with the VA examiners' findings, he has not specifically contended that those examinations upon which those findings were predicated were inadequate to rate his claim.  Nor does the evidence otherwise suggest that this has been the case.  Consequently, the Board concludes that the examination reports of record are adequate for the limited adjudication accomplished herein and that further development for an examination or opinion is unnecessary in this regard.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).

Similarly, the Board considers it unnecessary to schedule the Veteran for another hearing in support of his low back claim as he has already had the opportunity to testify before the undersigned Veterans Law Judge.  The Board acknowledges that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs 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, the Veterans Law Judge who presided over the appellant's hearing effectively complied with Bryant's directives by noting the basis of the prior determinations as well as the elements that were lacking to substantiate his low back claim.  Moreover, the Veteran has not contended, and the evidence does not otherwise show, that the undersigned Veterans Law Judge committed prejudicial error, either by failing to adequately apprise the Veteran of the issues presented or by neglecting to suggest the submission of helpful evidence that may otherwise have been overlooked.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.103(c)(2); Bryant.  On the contrary, the hearing transcript reflects that the Veterans Law Judge identified the pertinent facts and laws underlying the appeal.  He also elicited testimony from the Veteran regarding the nature and severity of his service-connected low back disorder.  The Veteran's testimony alerted the Board to the need for additional evidentiary development, which was thereafter accomplished to the extent possible pursuant to the August 2011 remand.  Therefore, the above Veterans Law Judge not only succeeded in explaining the relevant issue "in terms of the scope of the claim for benefits," but also fully articulated "the outstanding issues material to substantiating the claim."  See Bryant.  

In any event, the Board observes that, throughout the pendency of his appeal, the Veteran has displayed actual knowledge of the bases for the prior denials of his low back claim as well as the particular elements that have been found lacking in connection with that claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim).  Thus, even presuming, without conceding, that the Veteran's Central Office hearing did not fully comply with the Bryant provisions, such error was harmless in light of the actual knowledge of those provisions demonstrated throughout the appeals period.  38 C.F.R. § 3.103(c)(2).  Furthermore, there is no indication that the Veteran was otherwise denied due process during the course of his hearing.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and, thus, the Board can adjudicate the appellant's claim based on the current record.  

In light of the foregoing, the Board finds that the AOJ has substantially complied with the August 2011 remand directives such that his claim for an initial increased rating for his low back disorder may be adjudicated on a schedular basis.  See D'Aries, supra.  Moreover, the Board finds that VA has fully satisfied the duty to assist with respect to that claim, which is the only issue decided herein.  Indeed, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose in this limited regard.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  Therefore, the Board will now proceed to the merits of the Veteran's low back claim.  

II.  Analysis 

The Veteran seeks an initial disability rating in excess of 60 percent for his low back disorder, identified as degenerative disc disease of the lumbar spine.  

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time of service connection until a final decision is made.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In deciding this case, the Board has considered the possibility that different ratings may be warranted for different time periods since the date of service connection.

On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability.  Id.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Although the primary concern is the present level of disability, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. 

VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability.  Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  

The Veteran's descriptions of the symptoms of his service-connected disability are deemed competent evidence.  38 C.F.R. § 3.159(a)(2) (2012).  However, such statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria.  

The following paragraphs specifically apply to claims in which evaluating joint disabilities are 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).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

More recently, 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.  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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The Court has held that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011).  

The Board now turns to the specific diagnostic criteria implicated in this case.  Under VA's Rating Schedule, the applicable codes for evaluating disability of the spine provide a single set of criteria for rating conditions, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), no matter which spine-related diagnostic code applies.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  Those criteria have been in effect since September 26, 2003, and, thus, are applicable throughout the entire duration of the Veteran's appeal.

The above diagnostic codes dictate that disabilities of the spine are to be evaluated 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 method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012).

For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the General Rating Formula for Diseases and Injuries of the Spine applies, 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.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Diagnostic Codes 5235 to 5243.

Under the General Rating Formula, 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.   Id.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Id.   

The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) 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): 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.  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 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.  (See also 38 C.F.R. § 4.71a, Plate V).

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.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  

For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), 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.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2012).

If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2).

Consideration of any associated objective neurologic abnormalities is a required part of the evaluation of the spine rating claims on appeal.  See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Therefore, as part of the current appeal the Board has considered evaluation of any separate objective neurologic abnormalities associated with the lumbosacral spine disability such as any associated peripheral neuropathy of a lower extremity, or any related neurogenic bowel or bladder impairment or erectile dysfunction.  

In this regard, the Board notes that, in rating for peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2012).  Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2012).

Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis of each peripheral nerve group which is mild, moderate or moderately severe in degree, respectively.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy.  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

The Board now turns to the pertinent evidence of record.  Throughout the entire pendency of this appeal, the Veteran's low back disorder has been rated 60 percent disabling under the diagnostic criteria governing intervertebral disc syndrome.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  As noted previously, that is the maximum rating available under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Accordingly, while mindful of the DeLuca and Mitchell provisions governing painful motion, the Board finds that such constraints do not apply as the Veteran is currently in receipt of the highest evaluation possible under a limitation of motion code.  See Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code); VAOPGCPREC 36-97 (holding that consideration must be given to the extent of disability under 38 C.F.R. §§ 4.40 and 4.45 'when a Veteran has received less than the maximum evaluation' under a particular diagnostic code).  Nevertheless, the Board's analysis does not end here as it must also consider whether a higher combined evaluation will ensue if the chronic orthopedic and neurologic manifestations of the Veteran's low back disorder are separately rated and then combined pursuant to 38 C.F.R. § 4.25.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.  

In this case, the Veteran has been afforded VA examinations in July 2007, June 2009, and July 2012, which have yielded clinical findings pertinent to the above diagnostic criteria.  Significantly, however, those examinations have demonstrated that the Veteran's service-connected low back disorder has been manifested by forward flexion limited to no more than 25 degrees.  Such a finding falls squarely within the criteria for a 40 percent rating under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Moreover, the record has been utterly devoid of evidence of unfavorable ankylosis affecting any portion of the Veteran's thoracolumbar spine.  As such, the Board finds that the Veteran is entitled to no more than a 40 percent rating based solely upon the orthopedic manifestations of his low back disorder.  Thus, to warrant an overall higher evaluation for that service-connected disability, he would need to demonstrate neurological impairment sufficient to produce a combined rating above 60 percent under the provisions of 38 C.F.R. § 4.25 (combined rating table).  

Significantly, the record reflects that, notwithstanding the Veteran's receipt of a maximum 60 percent rating for intervertebral disc syndrome, he also has been awarded a separate 10 percent rating for right lower extremity radiculopathy, which has been found to most closely approximate mild paralysis of the sciatic nerve.  38 C.F.R. § 4.71a, Diagnostic Code 8520.  

Under Diagnostic Code 8520 absent a showing of sciatic nerve paralysis that is at least moderate with respect to the right lower extremity or at least mild with respect to the left.  No such showing has been made here.  On the contrary, the Veteran's most recent VA examination included a detailed peripheral nerves study in which he was expressly shown to have incomplete sciatic nerve paralysis that was no more than mild in degree and only extant in his right lower extremity.  Thus, the Board finds that Diagnostic Code 8520 cannot serve as the basis for the assignment of a higher rating in this instance.  38 C.F.R. § 4.71a, Diagnostic Code 8520.

Similarly, the Board is precluded from increasing the Veteran's compensation under any of the other peripheral nerve codes.  38 C.F.R. § 4.124a, Diagnostic Codes 8510-40, 8610-40, 8710-40.  The Board acknowledges that, during his most recent VA examination, the Veteran was found to exhibit mild to moderate levels of incomplete paralysis across not only the sciatic but also the common peroneal, superficial peroneal, tibial, and posterior tibial nerve groups.  Significantly, however, all of those affected nerve groups were concentrated in the Veteran's right lower extremity and were essentially branches of the sciatic nerve.  Further, the VA examiner made no attempt to differentiate those nerve groups in terms of function, and the Board itself is precluded from drawing such an independent medical conclusion.  See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991).  Consequently, the Board finds that the award of separate ratings for each commonly located and functionally indistinguishable nerve group would also violate VA's rule against pyramiding.  See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  

The record is silent for any other objective findings of peripheral nerve impairment.  Indeed, the July 2012 VA peripheral nerves examiner found no evidence of such impairment and there are no medical opinions to the contrary.  In this regard, the Board acknowledges that the Veteran himself has complained of neurological symptoms affecting his left lower extremity.  He is competent to report symptoms, such as radiating lower extremity pain and numbness, which are capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran has not shown that he has the requisite clinical expertise to translate such symptoms into a medical diagnosis.  See 38 C.F.R. § 3.159(a)(1) (2012) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions).  Thus, while cognizant of his complaints of left lower extremity nerve involvement, the Board finds that, given the countervailing medical opinion of the July 2012 VA examiner, the preponderance of the evidence weighs against a finding of left-sided neuropathy/radiculopathy associated with the Veteran's low back disorder.  

The Board has also considered whether this service-connected disability is productive of other neurological abnormalities, such as incontinence or erectile dysfunction.  However, while both types of abnormalities have been shown, the record reflects that the Veteran is already in receipt of separate noncompensable ratings for voiding and erectile dysfunction associated with his low back disorder.  38 C.F.R. § 4.115, Diagnostic Codes 7517, 7522.  

Significantly, to warrant a 10 percent rating for urinary frequency, there must be evidence of a daytime voiding interval between two and three hours, or awakening to void two times per night.  38 C.F.R. § 4.115a.  Such evidence has neither been contended nor shown in the instant case.  As such, the Board finds that, notwithstanding the evidence of urinary incontinence, the Veteran does not meet the criteria for a compensable rating based upon that particular neurological manifestation.

Nor does the Veteran qualify for compensation based upon his documented erectile dysfunction.  The criteria for evaluating such genitourinary system dysfunction is contained in 38 C.F.R. § 4.115b, Diagnostic Code 7522.  Under that code, erectile dysfunction is rated by analogy, to "penis, deformity, with loss of erectile power" under 38 C.F.R. § 4.115b, Diagnostic Code 7522.  See 38 C.F.R. § 4.20 (2011).  That code provides for a single 20 percent rating for deformity of the penis with loss of erectile power.  

In this case, while there is a confirmed diagnosis of erectile dysfunction, there is nothing in the clinical evidence of record that points to a deformity of the penis, and the Veteran does not contend otherwise.  Thus, because the Veteran does not meet the criteria for a 20 percent evaluation - the only compensable rating available under Diagnostic Code 7522 - the Board finds that his currently assigned zero percent rating should be continued in this instance.  See 38 C.F.R. § 4.31 (2012). 

Based on the foregoing, the Board finds that, throughout the pendency of this appeal, the Veteran's low back disorder has been productive of orthopedic manifestations that have not exceeded the criteria for a 40 percent schedular rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  Moreover, while peripheral nerve manifestations have also been shown, those abnormalities have been confined to the Veteran's right lower extremity and have warranted a separate rating of no more than 10 percent under Diagnostic Code 8520.  38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8521, 8522.  

Combining the separate orthopedic and neurologic ratings, delineated above, in accordance with 38 C.F.R. § 4.25 yields a "raw" total evaluation of 46 percent.  The provisions of the combined rating table stipulate that this final "raw" rating must next converted to the nearest degree divisible by 10.  Thus, the Veteran's separate orthopedic and neurological ratings translate into a final adjusted overall rating of 50 percent.  However, this is less than the single 60 percent rating currently assigned based upon incapacitating episodes.  Accordingly, in this case, it is to the Veteran's advantage to retain his current rating rather than accept a lower combined evaluation based upon the orthopedic and neurological manifestations of his lumbar degenerative disc disease.

Accordingly, the Board finds that, throughout the pendency of this appeal, the Veteran's low back disorder has been properly evaluated as 60 percent disabling under Diagnostic Code 5243 and has not warranted separate or higher ratings under any other applicable criteria.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  Further, the Board finds that a rating in excess of 10 percent is not warranted for mild incomplete sciatic nerve paralysis.  38 C.F.R. § 4.71a, Diagnostic Code 8520.  The preponderance of the evidence is against the assignment of any additional separate or higher schedular ratings for the Veteran's low back disorder.  Nevertheless, as detailed below, the Board finds that additional consideration is necessary, on remand, with respect to whether an extraschedular rating is warranted for that service-connected disability.

Finally, in exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Board finds that the rating criteria contemplate the Veteran's disability.  His service-connected back disability is productive of pain and functional impairment, manifestations are contemplated in the rating criteria, as is his right lower extremity symptoms.  The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted.


ORDER

Entitlement to an initial disability evaluation in excess of 60 percent for degenerative disc disease of the lumbar spine is denied.

Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied.

REMAND

In this decision, the Board has continued the Veteran's previously assigned 60 percent schedular evaluation for degenerative disc disease of the lumbar spine.  Significantly, however, the VA clinician who conducted the Veteran's recent July 2012 examination expressly noted that his low back symptoms interfered with his ability to work.  Moreover, the Veteran himself has consistently alleged, in written statements and testimony before the Board, that this service-connected disability precludes him from working and otherwise results in marked functional impairment that is not adequately contemplated by the VA Rating Schedule.

Significantly, the Veteran also has contended in an October 2012 written statement that his bilateral knee symptoms include significant neurological impairment and scarring.  The Board observes that the Veteran's statement post-dates and, thus, was not considered at the time of his most recent VA examination.  The Board further observes that, while that examination comprehensively addressed the neurological manifestations and lack of scarring associated with his low back disorder, it did not include such detailed findings with respect to his knees.  Given that discrepancy, and the fact that the Veteran has taken issue with the overall adequacy of this recent examination with respect to his knees, the Board finds that, on remand, he should be afforded a follow-up VA examination that specifically addresses whether his knee disorders are manifested by any neurological deficits, painful or unstable scarring, or other functional impairment.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).

A new VA examination, and related evidentiary development, is also warranted with respect to the Veteran's claim for an initial evaluation in excess of 10 percent for a gastrointestinal disorder identified as GERD with PUD.  The report of the most recent examination conducted with respect to that disability expressly noted that, in 2009, the Veteran had consulted a gastroenterologist (Dr. Wells) for gallbladder problems and thereafter had undergone a cholecstectomy.  Significantly, however, the July 2012 VA clinician who authored that examination report noted that the records associated with the Veteran's 2009 gastroenterological consultation and cholecstectomy were unavailable for review.  Moreover, the Veteran has since indicated that he was hospitalized at a VA medical center for five days in February 2012 for GERD-related problems.  However, no records of that hospitalization appear to have been added to his paper or electronic claims file.  Accordingly, the Board finds, that, on remand, the Veterans' outstanding 2009 and February 2012 treatment records should be obtained and that he should then be afforded a follow-up VA examination that includes a review of that pertinent clinical evidence.  See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

Turning to the Veteran's psychiatric claim, the Board observes that, pursuant to its previous remand, the AOJ issued an October 2012 rating decision assigning him a higher schedular rating of 70 percent, effective August 27, 2012.  However, while the AOJ noted that this represented only a partial grant of the Veteran's claim, it did not issue a supplemental statement of the case addressing why a total percent schedular rating was unwarranted for the appeals period in question.  Instead, the RO's October 2012 supplemental statement of the case only addressed why a rating above 30 percent was unwarranted for the period prior to August 27, 2012.

The Board observes that a supplemental statement of the case serves a different purpose than a rating decision as it provides the Veteran with a summary of the pertinent laws and regulations with respect to his claim.  38 U.S.C.A. § 7105(d)(1)(B) (West 2002); 38 C.F.R. § 19.29(b) (2012).  Accordingly, in order to put this appeal in the correct procedural posture, the Board finds that, on remand, a supplemental statement of the case should be provided that specifically addresses the issue of entitlement to a psychiatric rating above 70 percent for the period since August 27, 2012.  

Next, with respect to the issue of service connection for a left shoulder disorder, the Board notes that the Veteran has alleged that this disability shares the same etiology as the service-connected right shoulder impingement syndrome for which he is currently in receipt of a 30 percent rating.  The Board finds that the Veteran's assertions are sufficient to trigger the need for consideration of his left shoulder claim as secondary to his right shoulder disorder.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  As the Veteran has not been provided with VCAA notice that expressly addresses the requirements for secondary service connection, such notice should be provided on remand.  

Additionally, the Board observes that the VA clinician who examined the Veteran's left shoulder in July 2012 opined that this condition had not directly resulted from his military service.  However, that examiner made no findings with respect to a secondary theory of entitlement.  Nor did that examiner consider the Veteran's lay assertions of a continuity of left shoulder symptomatology since service, relying instead upon the lack of clinical left shoulder pathology noted at separation.  

In light of the foregoing deficiencies, the Board finds that a new VA examination is warranted to consider whether any current left shoulder disorder was caused or aggravated by any aspect of the Veteran's service, including his service-connected right shoulder disability.  The Board further finds this examination should expressly take into account the Veteran's reports of continuous left shoulder problems since service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion).  

Finally, the Board observes that, in its prior remand, it noted that the Veteran's assertions of unemployability, attributable to his low back, bilateral knee, and psychiatric disorders, had raised an issue of entitlement to a total rating based upon individual unemployability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this regard, the Board acknowledged that, as the Veteran was already in receipt of a 100 percent schedular rating for his combined service-connected disabilities, it followed that the issue of entitlement to a TDIU under 38 C.F.R. § 4.16 would be rendered moot.  Nevertheless, the Board pointed out that, in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the Court had determined that, while no additional disability compensation could be paid when a total schedular disability rating was already in effect, a separate award of a TDIU predicated on a single disability could form the basis for an award of special monthly compensation (SMC).  The Board further noted that the Court had subsequently declared that if a Veteran were awarded a TDIU (or by analogy in this case a schedular 100 percent rating) based on multiple underlying disabilities and then later received a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, the order of the awards would not be relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone.  Buie v. Shinseki, 24 Vet. App. 242, 250 (2010).  

Accordingly, the Board reasoned that, pursuant to Bradley and Buie, although entitlement to 100 percent combined schedular rating had been previously granted due to the combined impact of the Veteran's service-connected disabilities, VA still needed to consider whether an award of SMC pursuant to 38 U.S.C.A. § 1114(s) was warranted on a stand-alone basis for any of the Veteran's low back, knee, or psychiatric disorders.  Buie.  The Board therefore requested that, on remand, the AOJ consider whether a TDIU was warranted for the above service-connected disabilities in accordance with Rice.  Significantly, however, that issue has not yet been adjudicated in the first instance.  

A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Accordingly, as the AOJ has not yet fulfilled the Board's request for consideration of TDIU, an additional remand is necessary so that such development may be completed.  Stegall, 11 Vet. App. at 271.  

Moreover, in light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, on remand the AOJ should also determine whether the Veteran is entitled to SMC benefits under 38 U.S.C.A § 1114(s).  In this respect, the Board notes that claims for an extraschedular rating for a low back disorder, initial higher ratings for bilateral knee, gastrointestinal, and psychiatric disorders, and service connection for a left shoulder disorder all remain pending.  The assignment of higher ratings for these disabilities could affect the Veteran's claim for SMC in this instance.  As such, these issues are inextricably intertwined and adjudication of the SMC claim must be deferred pending adjudication of the increased rating and service connection claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1.  Send the Veteran a VCAA notice letter regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for a left shoulder disorder, to include as secondary to his service-connected right shoulder impingement syndrome, in accordance with 38 C.F.R. § 3.310.

2.  Notify the Veteran that he may submit lay statements regarding the nature, onset and continuity of his service-connected disorders being remanded, and their impact on his employability, as well as nature and etiology of any left shoulder disorder.  Those statements may come from the Veteran himself as well as from other individuals who have first-hand knowledge of such symptoms.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  After securing any necessary authorization from the Veteran, request records from the physician (Dr. Wells) who treated him for gallbladder problems and reportedly performed a cholecstectomy in 2009.  Also obtain and associate with the paper or electronic claims file the records of the Veteran's February 2012 VA hospitalization for GERD-related problems, as well as any other pertinent VA records generated since October 2012.  

4.  After the above development has been completed, the Veteran should be afforded a follow-up VA examination to determine the nature, extent and severity of his right knee patellofemoral syndrome; and left knee status post anterior cruciate ligament surgery.  

The examination should include all appropriate range of motion studies, expressing all findings in degrees and noting the degree where painful motion, if any, is present, on both flexion and extension.  In particular, the examiner should note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive testing.  The examiner should also indicate whether, and to what extent, there is any knee instability, subluxation or locking.

In addition, the examination should include detailed findings regarding any neurological impairment associated with any of the Veteran's right or left knee disorders.  In this regard, the examiner should expressly note whether any nerves are affected by paralysis, partial paralysis, neuralgia, or neuritis, and express an opinion as to the severity of any such symptoms in terms of being slight, moderate, moderately severe, severe, or complete.

Also, the examination should address whether any of the Veteran's right or left knee disorders is productive of scarring and specify the size of any scar and whether it causes limitation of motion, or is painful, unstable, or superficial.

Finally, the examination should address whether any of Veteran's right or left knee disorders, standing alone, renders him unable to secure or follow a substantially gainful occupation, and whether any such disability is otherwise productive of functional impairment, to include marked interference with employment or frequent hospitalization.  

All findings and conclusions should be set forth in a legible report.

5.  Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and severity of his gastrointestinal disorder.  

The claims file should be made available to the examiner for review before the examination and should include the additional pertinent clinical evidence requested in this remand.  The examiner should note in the examination report that the claims file and the remand have been reviewed.  

All indicated tests and studies should be performed.  In particular, the examiner should specifically state how often the Veteran experiences episodes of severe symptoms, whether they are incapacitating and how long they last, whether the manifestations of the ulcer are continuous, whether the Veteran has anemia, weight loss, pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, and recurrent melena.  

The examiner should set forth the complete rationale for all opinions expressed and conclusions reached in a legible report.

6.  Thereafter, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of any left shoulder disorder found to be present.  The claims file should be made available to and reviewed by the examiner.  All indicated studies should be performed, and all findings should be reported in detail.  The examiner should expressly comment on the Veteran's lay assertions regarding the onset and continuity of left shoulder symptomatology since service, and his statements relating such symptoms to his service-connected right shoulder impingement syndrome.

Specifically, the VA examiner should opine as to whether it is at least as likely as not that any left shoulder disorder found to be present is related to or had its onset during the Veteran's service or is otherwise attributable to any aspect of his service, including his right shoulder impingement syndrome.  The rationale for all opinions expressed should be provided in a legible report.  

7.  Then readjudicate the appeal.  The AOJ should also consider whether entitlement to a TDIU is warranted based upon any of the Veteran's low back, knee, or psychiatric disorders, standing alone.  Moreover, in light of the Court's recent decisions requiring VA to maximize a Veteran's benefits, the AOJ should also adjudicate the issue of entitlement to SMC based on account of being housebound.  

If any benefit sought remains denied the Veteran should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC and also addresses the specific issue of entitlement to an increased psychiatric rating for the period since August 27, 2012, which was not discussed in the previous SSOC.  The Veteran and his representative should be given an opportunity to respond.  Then, the case should be returned to the Board, if in order.

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).

These claims 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs