Citation Nr: 1305773 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 10-35 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic urinary tract infections. 2. Entitlement to an initial compensable rating for thoracolumbar strain. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to April 2001, from February 2003 to March 2005, and from March 2006 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's appeal was remanded by the Board in February 2012 so that the Veteran could be asked to reauthorize VA to obtain pertinent private treatment records from Christie Physical Therapy and Urology Austin PLLC, and to schedule the Veteran for appropriate examinations if such records were obtained. Correspondence dated in February 2012 was sent to the Veteran's last known address of record requesting her to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, so that VA could obtain these records. However, the Veteran did not return the form. Accordingly, the Board finds that there has been substantial compliance with the directives of the February 2012 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In Rice v. Shinseki, the Court of Appeals for Veterans Claims held that once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, 38 C.F.R. § 3.155(a) (2012), requires that VA must consider whether the claimant is entitled to a total disability rating for compensation on the basis of individual unemployability (TDIU) rating. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). Although, at the time of her July 2009 VA general medical examination, the Veteran indicated that she had been unemployed for a week, she further stated that she was scheduled to attend college on a fulltime basis in approximately one month. Additionally, it was indicated that the Veteran lost no time in the past 12 months due to medical reasons. As such, further consideration of entitlement to TDIU is not required. FINDINGS OF FACT 1. A currently-diagnosed disability manifested by chronic urinary tract infections is not of record at any time throughout the appeal period. 2. The Veteran's thoracolumbar strain is manifested by flexion of the spine to 90 degrees and a combined range of motion totaling 240 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic urinary tract infections have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for a compensable rating for thoracolumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duty to Notify and the Duty to Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Correspondence dated in May 2009 satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not contain evidence that she is in receipt of VA treatment or disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). Although there is evidence that there are outstanding private treatment records relevant to the Veteran's claims which have not been associated with the claims file, the Veteran did not return the VA Form 21-4142, Authorization and Consent to Release Information, sent to her last known address of record in February 2012. A VA examination pertinent to the issues on appeal was conducted in July 2009; the Veteran has not argued, and the record does not reflect, that the examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination conducted a full history of the Veteran's conditions and symptoms and documented her current symptoms. It also noted the results of complete physical examinations, providing clinical findings for the issues in question. Although the Appeals Management Center attempted to schedule the Veteran for a more recent VA spine examination in October 2012, the Veteran canceled the examination. There is no indication that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Service Connection for Chronic Urinary Tract Infections Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records indicate multiple incidences where she reported abdominal pain and pain upon urination, and treatment for various urinary tract infections. In January 2001, the Veteran complained of discharge with burning for 3 to 4 days. The diagnosis seemed to be bacterial vaginosis (BV) or a yeast infection. In September 2003, the Veteran sought treatment for persistent lower abdominal pain for 2 weeks, and burning upon urination for 2 days. The treatment note diagnosed the Veteran as having dysuria for 2 weeks, but denied that she had 2 or more urinary tract infections in the past 12 months. In October 2003, the Veteran complained of abdominal pain and burning upon urination for 2 weeks, with constant burning for 2 days. Upon examination, there was reproducible abdominal pain upon palpation of the Veteran's swollen uterus. The Veteran was diagnosed as having a swollen uterus and prescribed anti-inflammatory medications, although the test for urinary tract infection was sterile. In November 2006, the Veteran complained of lower abdominal pain and frequent urination with burning for one week, and was diagnosed as having likely urinary tract infection. On a September 2007 Report of Medical History, the Veteran indicated that she suffered from frequent urination due to urinary tract infections. Treatment records dated in February 2007 and April 2007 listed urinary tract infection among the Veteran's problems, while a November 2007 treatment record listed urinary tract infection as well as nonspecific, abnormal, urine test findings. However, a January 2008 treatment note found that it was dubious that a urinary tract infection was present as examination of her bladder was normal, and indicated that the Veteran's complaints were likely related to bladder spasms. The Veteran was instructed to stop holding her urine. At this time, the Veteran reported having frequent and painful urination and lower abdominal pain for 2 weeks. On her April 2009 Report of Medical History at separation, the Veteran again indicated that she suffered from frequent urinary tract infections following her first deployment. However, her corresponding May 2009 Report of Medical Examination at separation indicated that her abdomen, viscera, genitourinary system, and pelvic region were all within normal limits. Subsequent to service, the Veteran was provided with a VA examination in July 2009. At this time, she reported experiencing recurrent urinary tract infections while in service, approximately one every 3 months, which would resolve following treatment with antibiotics. However, she stated that these infections were acute and transient in nature, and would resolve shortly after treatment. The Veteran further indicated that she now used a cranberry supplement to prevent urinary tract infections, and noted no urinary tract infections since utilization of these supplements. She reported no additional associated symptoms or current urinary symptoms. Although the Veteran submitted a billing statement from Urology Austin PLLC in Austin, Texas, showing that an urinalysis was conducted on January 5, 2011, the results of this urinalysis have not been associated with the claims file. In its February 2012 remand instructions, the Board directed that the Veteran be asked to reauthorize VA to obtain these pertinent records. Correspondence dated in February 2012 was sent to the Veteran's last known address of record requesting her to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, so that VA could obtain these records from Urology Austin PLLC. However, the Veteran did not return the form. In the absence of proof of a present disability, there can be no valid claim for service connection; Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, without a currently-diagnosed urinary disability, a claim for service connection cannot be substantiated. See id at 225. Nor is there competent evidence of a urinary tract disorder at any point during the claim period. McClain v. Nicholson, 21 Vet. App. 319 (2007). According to the Veteran's statements at her July 2009 VA examination, she did not experience urinary tract infections since utilization of cranberry supplements, and reported no additional associated symptoms or current urinary symptoms. For these reasons, the Veteran's claim must be denied. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Initial Compensable Rating for Thoracolumbar Strain Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable rating for a diagnostic code, a noncompensable rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, service connection for thoracolumbar strain was granted in a November 2009 rating decision, and a noncompensable rating was assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Id. 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 warrants a 20 percent rating. Id. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating; unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; and unfavorable ankylosis of the entire spine warrants the maximum 100 percent rating. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The evidence of record does not support a compensable rating under the General Rating Formula. At the VA general medical examination in July 2009, flexion was to 90 degrees and the combined range of motion totaled 240 degrees. Muscle spasms, guarding, or localized tenderness were also not shown. On that basis, a compensable rating for thoracolumbar strain is not warranted. Moreover, the evidence of record does not support a separate rating for associated neurological abnormalities. At the VA general medical examination in July 2009, motor examination showed good strength without atrophy of the lower extremities. Straight leg raise testing was negative. The Veteran exhibited normal gait, stance, and coordination. Deep tendon reflexes were equal and active, and the Veteran exhibited normal sensation to vibratory touch. The Veteran's reports of intermittent, moderate mid-back pain are also adequately contemplated by the Rating Schedule. Notably, the General Rating Formula for Disabilities of the Spine specifically accounts for pain (whether it radiates or not), stiffness, and aching. Moreover, 38 C.F.R. §§ 4.40 and 4.45 specifically provide for the contemplation of any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court also has recently held that pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain only results in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Here, the evidence of record does not show that the Veteran's spine disorder causes a level of functional loss greater than that already contemplated by the assigned evaluation. DeLuca, 8 Vet. App. at 205; 38 C.F.R. §§ 4.40, 4.45. No additional limitation of motion after repetition or during flare-ups was recorded. The Veteran's reports of intermittent, moderate mid-back pain have been considered, and are recognized, but the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 beyond that contemplated in the currently assigned ratings. To the contrary, the Veteran stated at her July 2009 VA medical examination that she experienced no incapacitation associated with back pain, and noted back pain approximately 2 times per month upon prolonged sitting or laying down. An examination was scheduled in October 2012 to evaluate the Veteran's back disability, but she cancelled the examination and did not report. Since there is no indication that the Veteran has intervertebral disc syndrome of the spine, ratings greater than those assigned under the General Rating Formula cannot be assigned under the Formula for Rating Intervertebral Disc Syndrome. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and increased ratings for the Veteran's lumbar spine disability must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. 54-56. ORDER Entitlement to service connection for chronic urinary tract infections is denied. Entitlement to a compensable initial rating for thoracolumbar strain is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs