Citation Nr: 1304959 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-01 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an evaluation an excess of 10 percent for residuals of a fracture of the thoracic spine. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARINGS ON APPEAL The Veteran and his representative ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Honolulu, Hawaii, which increased the disability evaluation for the Veteran's service-connected residuals of a fracture of the thoracic spine from zero to 10 percent, effective June 20, 2005. In April 2006, the Veteran submitted a timely Notice of Disagreement with the disability evaluation, and subsequently perfected a substantive appeal. See 38 U.S.C.A. § 7105(a) (2012). In April 2007, the Veteran testified before a Decision Review Officer at the Honolulu RO. A transcript of the hearing has been associated with the Veteran's claims folder. In January 2010, the Board remanded the Veteran's claim for further development, specifically to allow him to be scheduled for a Board video conference hearing. In July 2010, the Veteran's representative appeared before the undersigned Acting Veterans Law Judge (AVLJ) and presented testimony on the Veteran's behalf. The representative indicated that the Veteran did not have the financial resources to travel from his home in Pahoa, Hawaii, to Honolulu. A transcript of the hearing has been associated with the Veteran's claims folder. In March 2011, the Board again remanded the Veteran's claim for further development. The requested development has been completed and the claim has now returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDING OF FACT Throughout the appeal period, the Veteran's residuals of a fracture of the thoracic spine has been manifested by dextroscoliosis. CONCLUSION OF LAW With applicability of the benefit of the doubt doctrine, the criteria for a rating of 20 percent, but no higher, for residuals of a fracture of the thoracic spine have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability rating and effective date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in August 2005 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. Another letter dated in March 2006 provided him with appropriate notice with respect to the disability rating and effective date elements of his claim. As these notices were provided to the Veteran prior to the initial adjudication of the claim in March 2006, the Board finds that the duty to notify, as well as the timing requirements of Pelegrini, have been satisfied. The Board also finds that the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file. VA Medical Center treatment records have been obtained. Appropriate VA examinations were performed. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim and which the RO has not already made attempts to obtain. The Board is also unaware of any such evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill two duties to comply with the above 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 hearing, the AVLJ specifically noted the issue as an "increased rating for residuals of a fracture of the thoracic spine in excess of 10 percent." See BVA Hearing Transcript, page 2. The Veteran was not present at the hearing, but the Veteran was represented at the hearing by an accredited representative from the Hawaii Office of Veterans Services. The AVLJ asked questions to ascertain whether the Veteran had submitted evidence in support of this claim and whether there was any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative described the Veteran's current symptoms in depth, and the AVLJ accordingly asked appropriate questions. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim (i.e., the severity of his service-connected disability), and the Veteran, through his representative, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, it is determined that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) were complied with and that any error in notice provided during the Veteran's Board hearing constitutes harmless error. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. General Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Effective September 26, 2003 (prior to the filing of the Veteran's claim in June 2005) the criteria for rating all spine disabilities (to include lumbosacral strain, designated under current DC 5237) are set forth in a General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 10 percent rating is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A rating of 20 percent is assignable 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 assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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, General Rating Formula for DCs 5235-5243 (as in effect since September 26, 2003). Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Here, when considering the pertinent evidence, the Veteran's overall disability picture, and the benefit of the doubt doctrine, the Board finds that a rating of 20 percent, but no higher, for the Veteran's residuals of a fracture of the thoracic spine is warranted. X-rays taken at the March 2006, July 2007, and April 2011 VA examinations revealed that the Veteran has dextroscoliosis of the thoracic spine. The April 2011 VA examiner specifically determined that the Veteran has 28 degrees of scoliosis. The treatment records do not provide contrary evidence to that obtained at the VA examinations. Thus, the Board finds that the evidence of record establishes that the Veteran's service-connected disability has caused an abnormal gait or abnormal spinal contour - particularly, scoliosis. Accordingly, in giving the Veteran the benefit of the doubt, the Board finds that a rating of 20 percent, but no higher, is warranted for residuals of a fracture of the thoracic spine throughout the entire appeal period. 38 C.F.R. § 4.71a, DC 5237. However, the record does not reflect forward flexion being limited to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar spine. Thus, a rating in excess of 20 percent is not warranted under the General Rating Formula. In reaching this conclusion, the Board has considered the Veteran's complaints on examination, but does not find them more probative than the objective medical findings. 38 C.F.R. § 4.71a, DC 5237. The Board also notes that, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected residuals of a fracture of the thoracic spine. However, such would not be the case here. None of the evidence of record indicates that the Veteran has any neurological impairment. The March 2006, July 2007, and April 2011 VA examiners all determined that the Veteran did not have any motor or sensory problems due to his service-connected residuals of a fracture of the thoracic spine. Because there has been no objective evidence of neurological impairment attributable to the residuals of a fracture of the thoracic spine, the Board finds that there is no basis for separate, compensable ratings under this provision. 38 C.F.R. § 4.71a, DC 5237. Although the revised criteria sets forth a Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating episodes, here, the disability also is not shown to involve IVDS at any time pertinent to the current claim for increase. 38 C.F.R. § 4.71a, DC 5237. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. As such, referral for extraschedular consideration is not in order here. Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. The record indicates that the Veteran is currently retired, and there is no allegation that his service-connected residuals of a fracture of the thoracic spine resulted in his retirement. His disability benefits records from the Social Security Administration (SSA) indicate that he is currently disabled and unable to work due to his seizure disorder and hand disorder, and not his service-connected residuals of a fracture of the thoracic spine. Therefore, consideration of a TDIU is not warranted. ORDER Entitlement to an evaluation of 20 percent, but no higher, for residuals of a fracture of the thoracic spine is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ B. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs