Citation Nr: 1310446 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 07-09 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the thoracolumbar spine, prior to January 5, 2011. 2. Entitlement to a rating in excess of 20 percent for traumatic arthritis of the thoracolumbar spine, since January 5, 2011. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to traumatic arthritis of the thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to November 1973. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2010, the Board remanded the matter for additional development. That development having been completed, the matter has been returned to the Board and is now ready for appellate disposition. Subsequent to the Board's remand, in a January 2012 rating decision, the evaluation assigned to the Veteran's disability was increased to 20 percent, effective January 5, 2011. As this rating is less than the maximum benefit available, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's claim has been recharacterized as shown on the title page, to depict the staged rating assigned to his disability. The Board acknowledges that upon receipt of the January 2012 rating decision, in February 2012 the Veteran expressed his disagreement with the effective date assigned for the 20 percent evaluation. However, because the Board is adjudicating the matter of entitlement to a rating in excess of 10 percent prior to January 5, 2011, any argument as to effective date prior to January 5, 2011 need not be addressed. The matter is subsumed in the Board's analysis below. For reasons expressed in more detail, below, the Board has characterized the appeal as encompassing a claim for a TDIU, due to the service-connected disability for which a higher rating is sought. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. In a December 2010 letter from the Veteran's wife, the issue of entitlement to service connection for a psychiatric disability, to include as secondary to traumatic arthritis of the thoracolumbar spine, was raised. As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU 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. FINDINGS OF FACT 1. Prior to January 5, 2011, the Veteran's traumatic arthritis of the thoracolumbar spine was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a 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. 2. Since January 5, 2011, the Veteran's lumbar degenerative disc disease has not been manifested by forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for traumatic arthritis of the thoracolumbar spine prior to January 5, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5242 (2012). 2. The criteria for a rating in excess of 20 percent for traumatic arthritis of the thoracolumbar spine since January 5, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Under applicable law, 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in April 2005 and June 2005 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The Veteran was provided with the rating criteria used to evaluate his disability in the February 2007 statement of the case. Thereafter, his claims were readjudicated in a January 2012 supplemental statement of the case. As such, the Veteran had actual knowledge of the applicable rating criteria prior to readjudication of his claims. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service treatment records and post service treatment records have been obtained. He has had the opportunity for a personal hearing. He has been afforded VA examinations. As they contained a full evaluation of the Veteran's disability, they are adequate. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its August 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ afforded the Veteran the opportunity to submit any additional evidence pertinent to the claims, and provided a VA examination for his back disability. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that while the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board also notes that while the regulations pertaining to disabilities of the spine have changed several times, these changes do not affect the Veteran's claim as his claim was filed in 2005, subsequent to the most recent regulation change. Thus, the regulation currently in effect, the General Rating Formula for Diseases and Injuries of the Spine, is the only applicable regulation. Under the General Rating Formula, a 20 percent rating is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating. As shown below, the Veteran does not have intervertebral disc syndrome or any kind of disc disease. Therefore, consideration under the Formula for Rating IVDS on the Basis of Incapacitating Episodes is not warranted. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Prior to January 5, 2011 Considering the evidence in light of the above, the Board cannot find that the criteria for a rating in excess of 10 percent for the Veteran's lumbar spine disability have been met prior to January 5, 2011. On VA examination in May 2005, examination of the thoracolumbar spine revealed no radiation of pain on movement. There was no muscle spasm or tenderness. Straight leg testing was negative bilaterally. There was no ankylosis. Flexion was to 90 degrees, and extension, bilateral lateral flexion, and bilateral rotation were each to 30 degrees. Pain was present at the endpoints of motion. The examiner found the Veteran's range of motion was additionally limited by pain, but not by weakness, a lack of endurance, or incoordination on repetitive use. There was no intervertebral disc syndrome or root involvement. Neurological testing was normal. There was no bowel dysfunction, bladder dysfunction, or erectile dysfunction. There was normal motor strength and function. Sensory function and reflexes were normal. As the foregoing indicates, there was no evidence showing that prior to January 5, 2011, the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, or by a combined range of motion not greater than 120 degrees. Additionally, there is no objective evidence of an abnormal gait or abnormal spinal contour due to muscle spasm or guarding. As such, the Board finds that the criteria for a rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine are not met prior to January 5, 2011. This is so even when considering the extent of the Veteran's functional loss due to pain and other factors. With specific regard to the DeLuca factors, the Board notes while pain was found on VA examination in May 2005, it was at the end of each of the Veteran's spine motions, and the Veteran's range of motion was nonetheless normal. In addition, there was no additional limitation of motion due to fatigue, weakness, a lack of endurance, or incoordination on repetitive use. Further, the General Rating Formula criteria are to be applied with or without symptoms such as pain. For all of these reasons, the Board cannot find that a higher evaluation is warranted based on functional impairment due to pain. In short, the 10 percent rating prior to January 5, 2011 adequately compensates the Veteran for his pain, and other DeLuca factors provide no basis for assignment of a higher rating. The Board has additionally considered the neurological manifestations of the Veteran's lumbar spine disability. As noted above, the May 2005 VA examination showed no neurological abnormalities. The Board notes that private medical records from October 2005 suggest the presence of neurological problems in the legs. In November 2005, a CT and MRI were conducted, which revealed a possible hemangioma and calcification of T10-T11 disc. However, no neurological disability associated with the Veteran's service-connected arthritis was diagnosed in the follow-up treatment records. Moreover, the record establishes that Veteran also suffers from peripheral vascular disease, and suffered a stroke in 2003. In the absence of evidence linking a particular neurological disability to the Veteran's arthritis, a separate rating based on neurological symptomatology is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent prior to January 5, 2011. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since January 5, 2011 Considering the evidence in light of the above, the Board cannot find that the criteria for a rating in excess of 20 percent for the Veteran's lumbar spine disability have been met since January 5, 2011. On VA examination on January 5, 2011, the Veteran complained of constant back pain. On examination, flexion was to 60 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation were each to 15 degrees. There was pain following repetitive motion, but no additional limitation on repetition. The examiner noted that the Veteran's back disability caused difficulty with lifting, twisting, and bending. He was able to perform all activities of daily living. There was no ankylosis of the thoracolumbar spine. Neurological testing showed a normal motor examination, normal muscle tone, and no muscle atrophy. Reflex examination was normal, as was sensory examination. The Veteran reported paresthesias and weakness in the legs and feet, but the examiner specifically found that the etiology of these symptoms was unrelated to the Veteran's service-connected spine disability. As the foregoing indicates, there is no evidence showing that since January 5, 2011, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. As such, the Board finds that the criteria for a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine have been met since January 5, 2011. This is so even when considering the extent of the Veteran's functional loss due to pain and other factors. With specific regard to the DeLuca factors, the Board notes while pain was found on VA examination in January 2011, there was no additional limitation of motion due to pain on repetition. There was also no additional limitation of motion due to fatigue, weakness, a lack of endurance, or incoordination. Further, the General Rating Formula criteria are to be applied with or without symptoms such as pain. For all of these reasons, the Board cannot find that a higher evaluation is warranted based on functional impairment due to pain. In short, the 20 percent rating since January 5, 2011 adequately compensates the Veteran for his pain, and other DeLuca factors provide no basis for assignment of a higher rating. The Board has additionally considered the neurological manifestations of the Veteran's lumbar spine disability. However, as noted above, the January 2011 VA examination showed no neurological abnormalities. The Veteran's complaints of paresthesias and weakness in the extremities were determined to be due to an etiology other than his service-connected back disability. As such, a separate rating based on neurological symptomatology is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent since January 5, 2011. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both Time Periods The Board has also considered the Veteran's own assertions, and those of his family, regarding his symptoms, which they are certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). In addition, the Veteran has not alleged that his range of motion is less than that which is already recorded in the medical evidence. He also has not contended that he has any kind of disc disease. As such, the Veteran's assertions, and those of his family, are not considered more persuasive than the objective medical findings which, as indicated above, do not support higher ratings than those already assigned. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's lumbar spine disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are "exceptional or unusual" factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, as they address various symptoms and their effect on functioning, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER An evaluation in excess of 20 percent for traumatic arthritis of the thoracolumbar spine, since January 5, 2011, is denied. An evaluation in excess of 10 percent for traumatic arthritis of the thoracolumbar spine, prior to January 5, 2011, is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record in this case contains evidence that the Veteran's back disability may preclude him from engaging in substantially gainful employment. For example, on VA examination in May 2005, it was noted that the Veteran's functional impairment results in reduced mobility and lack of activity secondary to the pain. The examiner noted he was not currently working due to back pain. In a December 2010 statement from a private physician, it was noted that the Veteran's multiple medical problems, including his chronic back pain, render him totally disabled. For these reasons, The Board finds that a claim of entitlement to TDIU has been raised in conjunction with his claim of entitlement to an increased evaluation for his traumatic arthritis of the thoracolumbar spine. As the percentage requirements for a TDIU under the provisions of 4.16(a) may not be met at the time of adjudication, the RO should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) as necessary. Accordingly, the case is remanded for the following actions: 1. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. Send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU. The letter should specifically explain how to establish entitlement to a TDIU and clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. After conducting any development deemed necessary by the record, the RO should then consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorder, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). As necessary, the RO should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). If the claim is denied the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his 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). ______________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs