Citation Nr: 1305072 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-46 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease (spondylosis) of the thoracolumbosacral spine with kyphosis, currently evaluated as 30 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for action tremor, claimed as neurological condition which causes uncontrollable shaking. 3. Entitlement to service connection for hyperextension injury of the right index finger. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active service from May 1955 to May 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2001 and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In December 2012 the Veteran's representative wrote to the Board and stated that the Veteran wished to withdraw his request for a hearing. A review of the Veteran's electronic virtual VA file reveals that all documents in this file were reviewed by the RO prior to issuance of the September 2012 supplemental statement of the case. An April 2009 rating decision granted service connection and assigned the Veteran a 10 percent rating for a heart condition, including mitral valve disease. The Veteran disagreed with the 10 percent rating assigned. In April 2010 the RO assigned the Veteran an increased rating of 60 percent for his heart condition. The RO also issued a statement of the case in April 2010. However, the Veteran did not submit an appeal and there is no issue regarding a heart condition currently in appellate status before the Board. The Veteran also raised the issue of entitlement a total disability rating based on individual unemployability (TDIU). See October 2008 VA examination report. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for a higher rating and as such, a determination must also be made with respect to this claim. During the October 2008 examination, the Veteran reported that he stopped working due, in part, to back pain. 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). The issue of whether new and material evidence has been submitted to reopen a claim for service connection for action tremor, claimed as neurological condition; the issue of service connection for a right index finger injury; and TDIU 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. FINDING OF FACT The Veteran does not have incapacitating episodes, he does not have ankylosis of the thoracolumbar spine, and his thoracolumbar spine range of flexion is greater than 30 degrees, even when considering pain, weakness, and incoordination with use. CONCLUSION OF LAW The criteria for a rating greater than 30 percent for degenerative joint disease (spondylosis) of the thoracolumbosacral spine with kyphosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In October 2008, prior to the rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's VA treatment records and Air Force Academy Hospital medical records have been obtained. The Veteran has been provided VA medical examinations. Neither the Veteran nor his representative has indicated that there is any additional evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. The Veteran was originally granted service connection and a noncompensable rating for low back pain by an October 1975 rating decision. A November 2006 rating decision recharacterized the Veteran's low back disability as degenerative joint disease of the thoracolumbosacral spine with spondylosis and mild kyphosis. The decision granted the Veteran a 30 percent for his low back disability effective from August 3, 1999. The Veteran submitted his claim for an increased rating for his low back disability in July 2008. He claimed that he now has osteopenia of the back and he submitted a bone density report. A review of this May 2008 bone density report shows that the Veteran has osteopenia of the hips and shows that he did not have osteopenia of his spine. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's service-connected back disability currently is rated 30 percent disabling under 38 C.F.R. § 4.71a. The Diagnostic Codes (DC's) for the spine are 5235 Vertebral fracture or dislocation, 5236 Sacroiliac injury and weakness, 5237 Lumbosacral or cervical strain, 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability, 5240 Ankylosing spondylitis, 5241 Spinal fusion, 5242 Degenerative arthritis of the spine (see also DC 5003), and 5243 Intervertebral disc syndrome. The Board finds that the preponderance of the evidence is against the Veteran's claim for a rating greater than 30 percent for service-connected thoracolumbosacral spine disability. Under DC 5242, a 40 percent rating is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. The evidence of record does not show that the Veteran has forward flexion of the thoracolumbar spine limited to 30 degrees or less. The evidence also does not show that the Veteran has ankylosis of the thoracolumbar spine. VA examination reports dated in October 2008 and July 2012 show that the Veteran does not have ankylosis of the spine. The October 2008 report indicates that the Veteran had 40 degrees of forward flexion without pain, and the July 2012 report indicates that the Veteran had 60 degrees of forward flexion without pain. Both VA examinations revealed no additional loss of range of motion on repetition and no additional loss of range of motion due to weakness, impaired endurance, incoordination, or instability. The Board has reviewed the Air Force Academy Hospital records and VA treatment records. These records also do not indicate that the Veteran has either ankylosis of the lumbar spine or forward flexion limited to 30 degrees or less. The Board has considered such factors as pain, weakness and incoordination with use. Even applying such considerations to this case, the medical evidence indicates that the Veteran has at least 40 degrees of painless forward flexion of the lumbar spine. As the medical evidence does not show that the Veteran has ankylosis of the lumbar spine or lumbar forward flexion limited to 30 degrees or less, the Board finds that the Veteran is not entitled to a rating greater than 30 percent for his service-connected thoracolumbosacral spine disability under the DC's for evaluating spinal disabilities. See DeLuca, 8 Vet. App. at 202. Under DC 5243, a 40 percent rating may be assigned for the Veteran's low back disability if the Veteran has intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board recognizes that the Veteran reported at his October 2008 VA examination that he had incapacitating episodes two to three times a month. However, Note 2 of Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. A review of the numerous medical treatment records in the Veteran's claims file and virtual VA file does not indicate that the Veteran has had any incapacitating episodes as defined by DC 5243. Consequently, the Veteran is not entitled to a rating in excess of 30 percent under Diagnostic Code 5243. The Board has also considered whether there is any objective evidence of neurologic abnormalities associated with the service-connected disorder pursuant to 38 C.F.R. § 4.71a, Note (1) following the General Rating Formula for Diseases and Injuries of the Spine. In this regard, at his July 2012 VA examination the Veteran denied numbness, tingling or paresthesias in his lower extremities. Moreover, the examiner conducted a neurologic evaluation and determined there was no radicular pain or other signs or symptoms due to radiculopathy. It was also noted that he did not have any other neurologic abnormalities or findings related to the thoracolumbar spine disability such as bowel or bladder problems. The October 2008 examination report noted complaints of pain that seemed to radiate to the left gluteal area but the description did not describe a sciatica or radiation of pain. While Tricare records do indicate in February 2009 that the Veteran has peripheral neuropathy, this was listed as a condition associated with diabetes mellitus. Accordingly, as the evidence does not show that the Veteran has an objective neurologic abnormality associated with the service-connected spine disability, a separate evaluation is not warranted. The Board recognizes the Veteran's many complaints of low back pain and reports of resulting difficulty with prolonged sitting, standing and walking. However, pain alone is not a factor that would impact a disability rating under the relevant Diagnostic Codes. Instead, the Board may only consider the effect pain has on the relevant factors in the Diagnostic Code which, in this case, focus primarily on mobility and function. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As shown above, the evidence does not show that any additional factors such as pain limit the Veteran's function to the extent that a higher rating is warranted. The examiners determined that there was no additional function loss due to painful motion, weakness, impaired endurance, incoordination or instability. Moreover on examination in July 2012, the Veteran denied flare-ups that impact the function of the spine. In rendering this determination, the Board has considered the Veteran's reports of symptoms and finds them credible, competent and probative. However, the evidence as a whole, as discussed above, does not show that the criteria for a higher rating are met for any period of time that is covered by this claim. Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may is made. The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Schedule is not inadequate, the Veteran has symptoms which ultimately result in limitation of motion of the spine which is countenanced by the schedular criteria. The Schedule does provide for higher ratings for the service-connected degenerative joint disease of the thoracolumbosacral spine. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, as discussed above, the schedular criteria for higher ratings have not been shown. In sum, there is no indication that the schedular criteria are not adequate to evaluate his claim. The Veteran has not met the criteria for a rating in excess of 30 percent at any time during the appeal period for his degenerative joint disease of the thoracolumbosacral spine. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the preponderance of the evidence is against the Veteran's claim and an increased rating for degenerative joint disease (spondylosis) of the thoracolumbosacral spine with kyphosis is not warranted. ORDER Entitlement to a rating in excess of 30 percent for degenerative joint disease (spondylosis) of the thoracolumbosacral spine with kyphosis is denied. REMAND An April 2012 rating decision denied the Veteran's request to reopen his claim for service connection for action tremor claimed as neurological condition which causes uncontrollable shaking. In November 2012 the Veteran submitted a notice of disagreement with the denial of that claim. The RO has not issued a statement of the case (SOC) with respect to this claim. The RO must issue an SOC regarding the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for action tremor claimed as neurological condition which causes uncontrollable shaking. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that a June 2001 rating decision denied the Veteran's claim for service connection for a hyperextension injury of the right index finger. The Veteran disagreed with the denial and in July 2002 the RO issued a statement of the case (SOC) regarding the right finger claim and two other claims. Later in July 2002 the Veteran submitted a substantive appeal. He checked the box that indicated that he wished to appeal all the issues listed on the statement of the case. Although the Veteran specifically addressed the other two issues on his substantive appeal and did not address the issue of service connection for a right index finger disability, the fact that he checked the box indicating that he wished to appeal all issues listed on the SOC indicates his wish to appeal the denial of entitlement to service connection for a hyperextension injury of the right index finger. See Evans v. Shinseki, 25 Vet. App. 7 (2011). Since receipt of the Veteran's July 2002 substantive appeal this issue has not been adjudicated by the Board and is thus currently in appellate status before the Board. In August 2001 the Veteran reported that he injured his right index finger from hyperextension injuries while working on airplanes during his 20 years of service. He asserted that he had restricted motion and arthritis of his right index finger due to inservice injury. In this case the Veteran has not been provided a VA medical examination of the right index finger. The Board finds the Veteran's statements of right finger injury during service are credible. Additionally the Veteran is competent to describe loss of motion of his right index finger. Given that VA treatment records in February 2008 reveal continued complaints of pain and verify limitation of motion of the right index finger, and given that x-rays confirm arthritis in the right hand, a VA medical examination, including medical opinion, should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the October 2008 examination, the Veteran reported that he stopped working due, in part, due to back pain. The RO should provide him with notice of how to substantiate a claim for TDIU pursuant to the Veterans Claims Assistance Act and request that he complete a TDIU claim form. An examination should also be conducted on remand that assesses the Veteran's ability or inability to work. Since the Veteran receives medical care through VA and Tricare (U.S. Air Force Academy Hospital), recent records should be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran an SOC as to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for action tremor claimed as neurological condition which causes uncontrollable shaking. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. Provide the Veteran with notice concerning how to substantiate a claim for TDIU and request that he complete a TDIU claim form. 3. Obtain recent VA records and associate them with the claims folder or the Veteran's virtual VA record. 4. Obtain any Tricare (U.S. Air Force Academy Hospital) records dating from 2009. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Afford the Veteran an appropriate examination to determine the nature and etiology of his right index finger disability. All indicated tests and studies should be conducted, including x-rays. The claims folder must be made available to the examiner for review before the examination. After the completion of the examination and review of the medical records, the examiner should provide an opinion as whether it is as likely as not (50 percent chance or greater) that the Veteran's current right index finger disability is causally related to service, including as a result of inservice hyperextension injury credibly reported by the Veteran. 6. The Veteran should also be scheduled for an examination pertaining to his TDIU claim. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to obtain or retain substantially gainful employment due to his service-connected disabilities, taking into consideration his previous work experience and education but not his age and nonservice-connected disabilities. The Veteran is service-connected for a heart condition, including mitral valve disease; degenerative joint disease of the thoracolumbosacral spine with spondylosis and mild kyphosis; posttraumatic stress disorder; pilonidal cyst; diabetes mellitus type II; tinnitus; residuals of a left wrist sprain; duodenal ulcer; bilateral cataracts; and erectile dysfunction. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examiner should provide a complete rationale for all conclusions reached. 7. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs