Citation Nr: 1311053 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-02 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain with osteoarthritis, rated 20 percent disabling prior to January 30, 2009. 2. Entitlement to an increased rating for lumbosacral strain with osteoarthritis, rated 40 percent disabling from January 30, 2009. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from November 1944 to June 1946. This case initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied entitlement to an increased rating for the lumbar spine disability listed on the title page, then rated 20 percent disabling. Jurisdiction over this case was subsequently transferred to the VARO in New York, and that office forwarded the appeal to the Board. In September 2009, the Veteran testified during a hearing at the RO before an Acting Veterans Law Judge (AVLJ) of the Board; a transcript of that hearing is of record. In a January 2013 letter, the Board informed the Veteran that the AVLJ who conducted the hearing was no longer employed by the Board and that he had a right to testify at another hearing. He was given the opportunity to request or decline such a hearing, and also informed that if he did not respond within 30 days from the date of the letter, the Board would assume he did not want a hearing and act accordingly. The Veteran did not respond to the letter within 30 days, and the Board will therefore proceed to decide the appeal. In December 2009, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) for additional development. In April 2010, the RO/AMC increased the rating for the lumbar spine disability to 40 percent, effective January 30, 2009, creating a staged rating as indicated on the title page. In September 2010, the Board again remanded the claim, and also assumed jurisdiction over and remanded a claim for a TDIU that had been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board remanded both claims in March 2011 and again in September 2011. For the reasons discussed below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) As a final preliminary matter, the Board notes that in December 2010, the RO granted service connection for bilateral lower extremity peripheral neuropathy and assigned separate 10 percent ratings. As the Veteran did not file a timely notice of disagreement with these initial assigned ratings, the Board will not address these issues herein. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms of the Veteran's lumbar spine disability have most nearly approximated flexion limited to 30 degrees or less during the appeal period that began with the filing of the increased rating claim on December 2, 2006. 2. Service connection is in effect for lumbar spine disability, rated 40 percent, right ankle disability, rated 20 percent, left ankle disability rated 10 percent, right knee disability rated 10 percent, right lower extremity radiculopathy, rated 10 percent, left lower extremity radiculopathy, rated 10 percent, and cryptic tonsils, rated noncompensable, with a combined rating of 80 percent. 3. The Veteran's service connected disabilities render him unable to obtain and maintain any form of substantially gainful employment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 40 percent, but no higher, for lumbar spine disability, have been met since December 2, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2012). 2. The criteria for a rating higher than 40 percent for lumbar spine disability have not been met any any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code DC 5237. 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). As the Board is granting the claim for a TDIU, further discussion of the VCAA in this regard is unnecessary. As to the increased rating claim, in a December 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for his lumbar spine disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the December 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the December 2006 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was also afforded multiple VA examinations with regard to the severity of his lumbar spine disability, including pursuant to Board remand instructions. For the reasons indicated below, these examinations were adequate and complied with the Board's remand instructions. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for an increased rating for lumbar spine disability and for a TDIU are thus ready to be considered on the merits. Analysis Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform 40 percent rating is proper. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5237. All disabilities of the spine are rated either under 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. There is no evidence of incapacitating episodes, however, as the Veteran denied such episodes on the December 2006 and March 2010 VA examinations; that formula is therefore inapplicable in this case. His claim for increase was filed in December 2006. Under the general rating formula, a 20 percent rating is assigned for, among other things, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Higher schedular ratings of 50 and 100 percent ratings are warranted for unfavorable ankylosis of the thoracolumbar spine and the entire spine, respectively. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The 20 percent rating prior to January 30, 2009 is based on the Veteran having flexion between 30 and 60 degrees. On the December 2006 VA examination, range of motion included forward flexion from 0 to 45 degrees. With repetitive range of motion testing, range of motion was decreased by 5 degrees with fatigue, lack of endurance, and incoordination. This reduction moved the Veteran's flexion closer to 30 degrees than 60 and raised the possibility that his symptoms more nearly approximated the criteria for a 40 percent rating of flexion less than 30 degrees. Significantly, the December 2006 VA examiner did not review the claims file prior to examination. Lack of claims file review does not in and of itself render an examination report inadequate or lacking in probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("This Court, however, has not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance"); VAOPGCPREC 20-95 (July 14, 1995) (listing circumstances in which claims folder should be reviewed prior to VA examination, but declining to adopt a rule requiring such review in every case). The lack of claims file review is relevant in this case, however, because VA treatment records prior to and during the appeal period note significantly decreased lumbar flexion. Specifically, VA treatment notes dated April 2004, November 2005, March 2006, and November 2007 note either a significant decrease in lumbar flexion or severely limited lumbar flexion. Had the December 2006 VA examiner seen these notes, he might have offered a more thorough opinion on whether there was additional functional impairment during flare-ups. Moreover, the RO based the increase from 20 to 40 percent on a January 30, 2009 VA treatment note, but treatment notes of this date refer primarily to the shoulder and do not give specific range of motion findings. Based on the indication of significant or severe decrease in lumbar flexion throughout the period prior to January 30, 2009 and the fact that lumbar flexion was closer to 30 than 60 degrees on the December 2006 VA examination after repetitive range of motion testing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's symptoms have more nearly approximated the criteria for a 40 percent rating under the general rating formula during the period prior to January 30, 2009. Resolving the reasonable doubt created by this approximately evenly balanced evidence, a 40 percent rating is warranted for lumbar spine disability prior to January 30, 2009. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Based on the above analysis, the Veteran is entitled to a 40 percent prior to January 30, 2009 and is now in receipt of a 40 percent rating throughout the appeal period. He is not, however, entitled to a rating higher than 40 percent at any time during the appeal period. A rating higher than 40 percent requires unfavorable ankylosis of the thoracolumbar or entire spine. Note 5 to the general rating formula defines unfavorable ankylosis as the spine or a segment thereof being fixed in flexion or extension and one or more of symptoms such as difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. There is no evidence of unfavorable ankylosis at any point during the appeal period. There was no ankylosis noted on the December 2006 VA examination or the March 2010 VA examination. Range of motion testing could not be performed on the March 2010 VA examination, but this was because the Veteran declined to stand up or bend because of the pain this would cause and ankylosis was neither noted nor diagnosed. In the absence of symptoms more nearly approximating unfavorable ankylosis, a rating higher than 40 percent is not warranted at any point during the appeal period. As to consideration of an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation to determine whether an extraschedular rating is warranted. In its March 2011 remand, the Board instructed that the claim for an increased rating for lumbar spine disability be referred to the Under Secretary or Director for consideration of assignment of an extraschedular rating for this disability. When this was not accomplished, the Board again remanded the claim for this development in September 2011. The development was accomplished in September 2012 and the Director rendered an opinion, and the RO/AMC thus complied with the Board's remand instructions in this regard. As the claim for an extraschedular rating for lumbar spine disability has been addressed by the Director, the Board may now address it on the merits. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009) (Board has jurisdiction to review denial of extraschedular rating on appeal under 38 C.F.R. § 3.321(b) where RO had previously referred claim for increased rating to Director of Compensation and Pension, who had found that extraschedular rating was not warranted). The Director denied an extraschedular rating because the Veteran had not been hospitalized for any extended period due to his lumbar spine disability, the range of motion in his spine met the schedular standards for the rating he was then receiving, and the totality of the evidence did not indicate that the Veteran's service-connected lumbar spine disability is so unusual as to render the use of the regular rating schedule standards impractical. The Board agrees with the Director's decision. While the Veteran's lumbar spine disability is severe, that severity is recognized by the 40 percent rating under the general rating formula that the Veteran is now receiving. The Board will find below that the Veteran's service-connected disabilities, in combination render him unemployable, notwithstanding that he is 85 years old. This does not, however, indicate that the lumbar spine disability alone causes marked interference with employment, i.e., beyond that envisioned by the 40 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Although the Veteran indicated that his lumbar spine disability interfered with his employment, the Board finds that this interference was not marked given the 40 percent rating and the other disabilities that also interfered with employment. Moreover, the Board's granting of a TDIU essentially render moots an extraschedular rating. In these circumstances, the Board will not find contrary to the Director's determination on this issue. For the foregoing reasons, a rating of 40 percent, is warranted for lumbar spine disability throughout the appeal period, and no higher rating is warranted at any point during the appeal period. The benefit of the doubt doctrine has been applied in the absence of a preponderance of the evidence, as indicated. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Thus, although the Veteran is 85 years old and suffers from multiple non-service connected disabilities, the Board cannot consider these factors in making its determination. Rather, it must decide whether the impairment cased by the Veteran's service connected disabilities would render him unemployable without regard to his age and other disabilities. A TDIU is warranted in this case for the following reasons. Initially, the Veteran meets the threshold requirements for consideration of a TDIU on a schedular basis, as he is in receipt of service connection for lumbar spine disability, rated 40 percent, right ankle disability, rated 20 percent, left ankle disability rated 10 percent, right knee disability rated 10 percent, right lower extremity radiculopathy, rated 10 percent, left lower extremity radiculopathy, rated 10 percent, and cryptic tonsils, rated noncompensable, with a combined rating of 80 percent. See 38 C.F.R. § 4.16(a). The Board notes that the March 2011 RO decision granting service connection for bilateral ankle and knee disabilities appears in the Virtual rather than physical VA claims file. The RO also denied a claim for a TDIU in June 2011, but that TDIU claim was separate from the one being adjudicated on this appeal. See Rice, 22 Vet. App. at 453. In addition, in its March 2011 remand, the Board found that it could not address the merits of the TDIU claim without a VA examination. A Social and Industrial Survey was conducted in May 2011, at the conclusion of which a VA social worker wrote, "Given [the Veteran's] age, it is difficult to conclude that he may still be gainfully employed at this time, if not for his back injury. It is as least as likely as not that back pain may have been a contributing factor to his retirement." The Board found that this opinion was unclear and confusing due to the equivocal language employed and consideration of the Veteran's age and requested clarification. Such clarification was provided by the same VA social worker in November 2011, who wrote that, having reviewed the claims file and discussed the case with the social worker section chief, it was her opinion that the Veteran could be considered unemployable due to his service connected disabilities, which she listed accurately. The opinion of the VA social worker with its clarification is probative of the issue of the Veteran's unemployability due to service connected disabilities. She considered all of the lay and medical evidence and rendered a definitive conclusion after the Board found fault with her initial opinion. To the extent that her reasoning was not extensive, it was clear from the context of the report and clarification that she believed that the nature of the Veteran's service-connected disabilities were such as to render him unable to obtain and maintain any form of substantially gainful employment consistent with his education and occupational experience. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As there is no contrary opinion in the record, the weight of the evidence supports entitlement to a TDIU, and the claim must therefore be granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 40 percent rating, but no higher, for lumbosacral strain with osteoarthritis, is granted prior to January 30, 2009, subject to controlling regulations governing the payment of monetary awards. Entitlement to an increased rating for lumbosacral strain with osteoarthritis, rated 40 percent from December 2, 2006, is denied. Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs