Citation Nr: 1308074	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  09-22 361	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder.

2.  Entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for a left shoulder disability.

4.  Entitlement to an effective date earlier than April 15, 2009, for the award of a 20 percent rating for residuals of a herniated disc at L4-L5.

REPRESENTATION

Veteran represented by:	Missouri Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

S. Coyle, Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 1995 to March 2007. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2012, the case was remanded to afford the Veteran a hearing, which was then held in October 2012 before the undersigned Veterans Law Judge.  A copy of the hearing transcript has been associated with the file.

The claims of service connection are REMANDED to the RO via the Appeals Management Center in Washington, DC. 

FINDINGS OF FACT

1.  In a rating decision in September 2007, the RO granted service connection for residuals of a herniated disc at L4-L5 and assigned a noncompensable rating effective March 16, 2007, the day after the Veteran's discharge from service. 

2.  Before April 15, 2009, there was evidence of painful motion of the lumbar spine, but forward flexion greater than 30 degrees, but not greater than 60 degrees, or a combined range of motion not greater than 120 degrees, or objective neurological abnormality, or incapacitating episodes were not show. 







CONCLUSION OF LAW

Before April 15, 2009, the criteria for a 10 percent rating have been met, but the criteria for a 20 percent rating had not been met for residuals of a herniated disc at L4-L5.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. 



Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a)  as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112   (2004). 

The RO provided pre-adjudication VCAA notice by letter dated in June 2006.   Where, as here, service connection has been granted and the initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the effective date of the rating assigned does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable.  Goodwin v. Peake, 22 Vet. App. 128 (2008).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service records as well as VA and private medical records.  

The Veteran was afforded VA examinations in 2007 and in 2009.  As the examination reports contains the medical history and findings, pertaining to the rating criteria, the Board finds that the reports are adequate to decide the claim.  






See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical examination must be based on consideration of the history and describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

General Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589   (1991). 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 


The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 

Evidentiary Standards

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).







Rating Factors

Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 

The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes.  Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. 

Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Rating Lumbar Spine Degenerative Disc Disease

Lumbar spine degenerative disc disease is rated 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243. 





A disability of the spine is rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. 38 C.F.R. § 4.71a. 

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  

The criteria for a 20 percent rating are 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. 

Under the General Formula, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code for the neurologic abnormality. 

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 normal combined range of motion of the thoracolumbar spine is 240 degrees.  Plate V, 38 C.F.R. § 4.71a.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months.  


The criteria for a 20 percent rating are incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months.

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. 

Evidence 

The Veteran was separated from active duty on March 15, 2007.  In May 2007, the filed an original claim of service connection to include residuals of a herniated disc at L4-L5.  In a rating decision in September 2007, the RO granted service connection for residuals of a herniated disc at L4-L5 and assigned an initial noncompensable rating from March 16, 2007.  The Veteran filed a notice of disagreement with the noncompensable rating.  While on appeal in a rating decision in May 2009, the RO increased the rating to 20 percent, effective April 15, 2009, the date of a VA examination, but not to March 16, 2007.  

The Veteran then disagreed with the effective date for the 20 percent rating, but not with the 20 percent rating itself.  The Veteran argues that the effective date for the 20 percent rating should be the date service connection was granted March 16, 2007.  

On VA examination in July 2007, the Veteran complained of daily back pain without flare-ups, made worse by repetitive bending, lifting, and other activities such as mowing the lawn or washing his car.  He did not use back braces or other assistive devices, but did wear a support belt when lifting weights.  His employment and activities of daily living were unaffected and he denied periods of incapacitation. 





On physical examination, the Veteran got up quickly from a chair and walked briskly without evidence of an abnormal gait.  The deep tendon reflexes were 2 of 4 in the lower extremities.  Sensation to light touch was intact in the lower extremities.  He was able to walk on his toes and heels without evidence of motor weakness.  The straight leg raising was negative.  There was no tenderness of the paraspinal muscles or abnormal curvatures or spasm of the spine.  Range of motion of the lumbar spine was flexion to 90 degrees, extension to 30 degrees, lateral flexion and rotation, right and left, were each to 30 degrees.  There was no pain with the range of motion or with repetitive motion and no additional functional loss due to pain, fatigue, incoordination, or instability.  

VA records from February 2008 to December 2008 show that the Veteran complained of back pain in February, April, July, August, and October 2008.  In December 2008, the Veteran complained of low back pain and stiffness and limited range of motion after he got out of his truck.  The pertinent finding was tenderness over the lumbar paraspinal muscles.  The assessment was low back pain and muscular strain.  The Veteran was advised to continue his pain medication.  

On VA examination in April 2009, the Veteran complained that his back problem was progressively worse since service. The pertinent finding was flexion to 50 degrees with repetitive motion. 

Analysis 

The effective date for increase for a service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). 

The first question is whether prior to April 15, 2009, the manifestations of the residuals of a herniated disc at L4-L5 met the criteria for a 20 percent rating.  




Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a 20 percent rating are 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. 

Under the General Formula, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code for the neurologic abnormality. 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 20 percent rating are incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months.

On VA examination in July 2007, range of motion of the lumbar spine was flexion to 90 degrees, extension to 30 degrees, lateral flexion and rotation, right and left, were each to 30 degrees.  There was no pain with the range of motion or with repetitive motion and no additional functional loss due to pain, fatigue, incoordination, or instability.  As 90 degrees of flexion does not more nearly approximate 60 degrees of flexion, the criteria for the next higher rating based on limitation of motion, considering functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40 , 4.45, 4.59, have not been met. 

The combined range of motion was (90+30+30+30+30+30 = 240 degrees).  As a combined rating of 240 degrees does not more nearly approximate 120 degrees, the criteria for the next higher rating based on the combined limitation of motion, considering functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40 , 4.45, 4.59, have not been met.


And there is no evidence of any associated objective neurologic abnormalities to rate separately.  And there is no evidence of incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

For these reasons, the criteria for a 20 percent rating before April 15, 2009. 

As the claim is one for an initial rating, the Board must also consider whether a staged rating is appropriate.  In other words, while the evidence does not support a 20 percent rating before April 15, 2009, the remaining question is whether the evidence supports a compensable rating, that is, a 10 percent, the minimum rating for a disability of the lumbar spine. 

The intent of the Rating Schedule is to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  See Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 requires a minimum rating for the specific joint).

The Veteran has consistently complained of back since the VA examination in July 2007.  VA records show that the Veteran complained of back pain in February, April, July, August, and October 2008.  In December 2008, the Veteran complained of low back pain and stiffness and limited range of motion after he got out of his truck.  The pertinent finding was tenderness over the lumbar paraspinal muscles.  The assessment was low back pain and muscular strain.  The Veteran was advised to continue his pain medication.  Also, the Veteran is competent to describe symptoms such as pain and his statements are credible in light of the underlying pathology, a herniated disc at L4-L5. 

The findings since July 2007 and in 2008 more nearly approximate painful motion under 38 C.F.R. § 4.59, which warrants a 10 percent rating since the effective date of the grant of service connection.



ORDER

An effective date before April 15, 2009, for a 10 percent rating for residuals of a herniated disc at L4-L5 is granted.  An effective date before April 15, 2009, for a 20 percent rating for residuals of a herniated disc at L4-L5 is denied.

REMAND

On the claim of service connection for a psychiatric disorder to include posttraumatic stress disorder, the Veteran was diagnosed with chronic posttraumatic stress disorder during service.  After service, on VA examination, the VA examiner reported that the Veteran's posttraumatic stress disorder symptoms were subclinical and more indicative of anxiety disorder.  Also the Veteran indicated that he was unable to enter the United States Air Force Reserve because of his mental health symptoms.

On the claims of service connection for a right knee and left shoulder disabilities, the service treatment records are incomplete.  And it is not clear whether the records do not exist or further attempts to obtain the records would be futile. 

As the evidence of record does not contain sufficient evidence to decide the claims and as the record appears incomplete, further development under the duty to assist is needed. 

Accordingly, the case is REMANDED for the following action:

1.  Make another request for service treatment records from January 2003 to March 2005. 






If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).

2.  Obtain VA records since March 2009.  

3.  Ask the Veteran for documentation to support his statement that he was unable to enter the United States Air Force Reserve because of his mental health symptoms. 

4.  Afford the Veteran a VA examination by a VA psychiatrist or psychologist to determine:

Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that:

The Veteran has posttraumatic stress disorder due to service, including injury by an improvised explosive device or general fear of hostile military activity; or,

The Veteran has a psychiatric disorder other than posttraumatic stress disorder, namely, anxiety disorder or depression, related to his service?  

The Veteran's file must be made available to the VA examiner for review.  


5.  Afford the Veteran a VA examination to determine: 

Whether the Veteran has:

A current right knee disability, or 

A current left shoulder disability, and, if so, 

Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that:

The current right knee disability or left shoulder disability is a progression of the right knee and left shoulder pain reported by the Veteran after injury by an improvised explosive device in July 2006, or the development of new and separate conditions?  

The claims folder must be made available to the VA examiner for review.  

6.  After the above development is completed, adjudicate the claims of service connection.  On the claim of service connection a psychiatric disorder to include posttraumatic stress disorder, apply the current version of 38 C.F.R. § 3.304(f), including the provisions, pertaining to the diagnosis of posttraumatic stress disorder during service, a stressor related to combat, and fear of hostile military or terrorist activity.  





If any benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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).



_________________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs