Citation Nr: 1310170 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-20 818A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for low back strain. 2. Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected bilateral metatarsalgia and post operative hammertoe, left third toe. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Winston -Salem Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in August 2006. The Veteran was provided with a Statement of the Case (SOC) in July 2007. The Veteran perfected his appeal in July 2007 with a VA Form 9. On her July 2007 VA Form 9, the Veteran requested a Board hearing. The hearing was scheduled for March 2009. The Veteran, through her representative, submitted a written request to withdraw the hearing in March 2009. To date, she has not requested a new Board hearing. Accordingly, the Board considers her hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2012). The issues of service entitlement to a disability rating in excess of 10 percent for low back strain and service connection for a left ankle disability, to include as secondary to the service-connected bilateral metatarsalgia and post operative hammertoe, left third toe, was also previously before the Board in November 2010, at which time it was remanded to the Appeals Management Center (AMC) for further development. The AMC issued a Supplemental Statement of the Case (SSOC) on December 2011, in which it continued to deny the claim. The information of record reflects that the Veteran is currently in receipt of a total disability rating based on individual unemployability due to service-connected disabilities, effective from February 18, 2005. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file nothing further pertinent to the present appeal. The issue of entitlement to an increased evaluation for hypertensive coronary artery disease been raised by the record in private treatment records dated May 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a left ankle disability, to include as secondary to the service-connected bilateral metatarsalgia and post operative hammertoe, left third toe is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The record evidence establishes that the Veteran is not shown to have a 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 in any period pertinent to this appeal. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for low back strain are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluation for low back strain, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, private treatment records, social security administration (SSA) records and VA medical records have been obtained. VA provided the Veteran with adequate medical examinations in July 2005, November 2005, and January 2011. The examinations are adequate because each contains a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disabilities, to include the effects on her occupation and usual daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's low back strain is rated as 10 percent disabling under the diagnostic code for lumbosacral or cervical strain in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 10 percent evaluation is warranted 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. Id. A 20 percent evaluation is warranted for 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. Id. A 40 percent evaluation 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 evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Analysis In a February 1993 rating decision, the Veteran was granted service connection for low back strain. A 10 percent evaluation was assigned, effective April 1, 1992. The Veteran later filed a claim for an increased evaluation in February 2005. The Veteran was administered a VA examination on July 2005. At that examination, the examiner noted that the Veteran complained of having back pain off and on for the prior fifteen years. The Veteran stated that she limits bending and lifting activities as much as possible. She described having pain that was a dull ache located in the lower aspects of her back and that it is about a 7 or 8 in severity on a scale of 1 to 10. The Veteran reported requiring bed rest about two times per year and treatment with Motrin. The Veteran was diagnosed with degenerative arthritis, lumbar spine, with a current normal spine examination. In a November 2005 addendum, the examiner provided range of motion testing, which showed a flexion of 90 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation of 30 degrees with no evidence of pain, spasms, tenderness, fatigue, lack of endurance, or incoordination. There was no further limitation noted after repetition. Range of motion was noted as normal. The Veteran stated in her July 2006 notice of disagreement that her back condition was worse and that, in her opinion, the examiner in the 2005 VA examinations did not fully examine her. In a November 2008 statement from her representative, it is indicated that the Veteran experienced pain that interferes with her activities of daily living and was not taken into account by the 2005 VA examiner. Private treatment records showed treatment for back strain, with complaints of pain and spasms. No range of motion testing was indicated. The Veteran's VA treatment records also showed treatment for back strain, with complaints of pain and spasms. No range of motion testing was indicated in those records as well. SSA records did not reveal any complaints or treatment for back strain. The Veteran was administered an additional VA examination in January 2011. At this examination, the examiner noted the Veteran's history of low back pain since service. Pain was reported at a severity of 4 to 5 on a scale of 1 to 10. The Veteran stated that the pain comes and goes depending on activities and that she treats it with Tylenol and Motrin. The condition was noted as stable since onset. The Veteran provided subjective complaints of fatigue, stiffness, spasm, and a burning, aching pain that is moderate, occurs daily, and lasts for hours. The Veteran's spinal curvature and gait were normal. There were no objective findings of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Reflex, sensory, and motor examinations were all normal. The examiner provided range of motion testing which revealed a flexion and extension of 0 to 85 degrees, bilateral lateral flexion of 25 degrees, and bilateral lateral rotation of 30 degrees. No evidence of pain with motion was noted and there was no additional pain or loss of motion after repetition. The Veteran was diagnosed with mild lumbar degenerative joint disease. No effects on occupational or daily activities were noted. Based on the above, the Board finds that the Veteran's low back strain only meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation, the evidence must show a 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. Because the medical evidence of record has not at any time during the pertinent appeals period shown the presence of a limitation of motion even close to that contemplated by the Schedule, as the Veteran's flexion has only decreased from 90 degrees to 85 degrees over a six year period , nor has there been any indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for lower back strain. Consideration has also been given regarding whether the schedular evaluations are 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); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected low back strain, but the evidence reflects that those manifestations, namely the presence of a more substantial limitation of motion, are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's low back strain, as the criteria assess social and occupational impairment to include addressing various limitations of painful motion. Furthermore, the Board takes notice of the Veteran's complaints of daily pain and finds that she is competent to testify as to the severity of the symptomatology associated with her low back pain during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, her statements are presumed credible, as her complaints of pain have remained consistent in both her lay testimony and the medical record. However, her current evaluation of 10 percent, the minimal compensable rating, already takes pain into consideration in accordance with 38 C.F.R. § 4.59, in which it states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Therefore, the Veteran's current rating appropriately contemplates the scope of her complaints. Accordingly, referral is not required. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's low back strain at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010) ORDER Entitlement to a disability rating in excess of 10 percent for low back strain is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain an addendum opinion. The Veteran has claimed that she slipped and fell on wet grass in her front yard in March 2001. She claims that this was either the result of complaints of ankle pain in military service or related to her service connected bilateral foot condition. In her July 2006 notice of disagreement, the Veteran also stated that she slipped and fell several times in service because her ankle gave way. Service treatment records revealed treatment for both foot and ankle pain. August 1987 and March 1991 records particularly shows complaints of left ankle pain. The Veteran's VA outpatient treatment records reflect treatment for her left ankle, but only discussed etiology relating to the March 2001 accident. The Veteran's private treatment records and SSA records also show the performance of surgery and treatment for a left ankle fracture in March 2001, but do not discuss any etiology other than the accident. The Veteran's service-connected foot condition was also noted. The Veteran was administered a VA examination in April 2006. At the examination, the examiner noted that the Veteran left active duty in 1992 and fractured her ankle in 2001, requiring surgery. The Veteran reported suffering from pain, weakness, and constant stiffness, particularly in the morning, since the accident in 2001. The pain was described as constant, squeezing, burning, oppressing, and sharp. It was an 8 in severity on a scale from 1 to 10 and traveled to the ball of the foot. The pain was noted as coming by itself or with activity and usually relieved by rest and medication. The Veteran stated that she cannot walk without a cane due to this condition. Objective observation revealed effusion, tenderness, and guarding of movement. Range of motion testing revealed a dorsiflexion of 15 degrees and a plantar flexion of 35 degrees. On repetitive testing, the Veteran's joint function was found to be limited by 2.5 degrees due to fatigue, weakness, lack of endurance, and pain. The examiner diagnosed the Veteran with bimalleolar fracture, left ankle, status post surgical repair. A slight effect was noted on the Veteran's occupation and minimal on daily activities. The examiner opined that the Veterans current left ankle condition was not related to the ankle pain in service or her service-connected left foot condition. In support, he provided that the Veteran had related she stepped into a hole in 2001 and that was the sole source of her left ankle injury and subsequent complications. The examiner did not discuss whether the Veteran's service-connected foot condition could be aggravating the left ankle condition. An addendum opinion to the 2006 VA examination was obtained in August 2011. In the examination report, the examiner indicated that he had reviewed the entire claims file. The examiner further indicated that he had not had an opportunity to examine the Veteran and that he also did not understand the condition of her ankle prior to the 2001 accident. The examiner stated that the Veteran was apparently functioning well from the time of her discharge in 1992 to the time of the accident in 2001. The surgery was found to be satisfactory and there was no noted evidence of arthritis. As such, the examiner found that the Veteran's foot condition was not at all likely the cause of the slip and fall in 2001. The examiner also opined that it was not likely that the Veteran's foot condition would worsen the symptoms of the left ankle after the accident. It was found that the Veteran's weight may be a more likely factor in the 2001 fall. The examiner also stated that nothing in the medical literature he reviewed indicates a relationship between metatarsal discomfort and an injury or worsening of problems for an ankle. The Board finds that the addendum opinion provided is not adequate. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Court has instructed that, in order for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). Here, the 2011 VA examiner, by his own admission, did not have sufficient facts or data upon which to base an opinion. The examiner stated that he did not know the condition of the Veteran's left ankle before the 2001 accident, however, there are service treatment records that noted complaints of left ankle pain. Further, the examiner appears to contradict himself when he stated that the Veteran's ankle condition was apparently fine between 1992 and 2001, thereby indicating that he did in fact know the condition of the Veteran's left ankle prior to the accident. Last, the examiner merely dismissed the possibilities of relationship to prior complaints of ankle pain or aggravation of the left ankle injury by the Veteran's service-connected left foot condition in stating that the Veteran's weight was more likely the cause and that medical literature does not show such a connection. However, this analysis fails to take into account the specific circumstances of the Veteran's ankle and foot conditions prior to the accident and provided no further explanation as to why such a relationship would not be possible or only attributable to the Veteran's weight. As such, upon the administration of a new examination, the Veteran's entire history of left foot and ankle complaints should be discussed as well as a well-reasoned analysis of the etiological considerations for the 2001 ankle injury. Accordingly, the case is REMANDED for the following action: 1. The AMC should refer the claims folder to an appropriate orthopedic specialist, preferably the QTC examiner who conducted the examination in April 2006 or the specialist who provided the August 2011 addendum, if available, for an addendum opinion. Based on a review of information and evidence contained in the claims folder, including the Veteran's medical history and the evaluation results, the examiner is asked to offer an opinion addressing the following questions: (1) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral metatarsalgia and post operative hammertoe of the left third toe are the cause of any currently diagnosed left ankle disorder, to include a bimalleollar fracture of the left ankle? (2) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral metatarsalgia and post operative hammertoe of the left third toe caused a worsening of any currently diagnosed left ankle disorder, to include a bimalleollar fracture of the left ankle? In answering the above questions, the examiner should take into account the 1987 and 1991 service treatment record showing treatment for left ankle pain as well as the Veteran's statements that she fell multiple times in service due to her ankles giving out. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. All required testing must be performed. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issue of service connection for a left ankle disability, to include on a secondary basis, must be readjudicated. If the benefits remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs