Citation Nr: 1312207 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-29 638 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of traumatic brain injury. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine prior to March 6, 2012, and in excess of 20 percent from March 6, 2012. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from April 13, 2005, to July 11, 2007, with 10 years, 10 months, and 7 days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) following a July 2009 rating decision by the St. Petersburg, Florida RO, which denied the Veteran's claims of entitlement to service connection for residuals of a traumatic brain injury, and a rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine. The Veteran did not appeal for a higher rating for his back disability, but the Board, on its own initiative, addressed that issue in a January 2012 remand. Consequently, it will be addressed below. On September 12, 2011, the Veteran and his spouse testified at a hearing before a Veterans Law Judge, sitting at the RO. A transcript of the hearing is of record. By a rating action in July 2012, the Appeals Management Center (AMC) increased the evaluation for degenerative joint disease of the thoracolumbar spine from 10 percent to 20 percent, effective March 6, 2012. Since this is not the highest possible rating available under the rating schedule for this disability, and the Veteran has not indicated that he is content with this rating, the appeal continues. See AB v. Brown, 6 Vet. App. 35, 39 (1993). A supplemental statement of the case (SSOC) was issued in August 2012. By letter dated November 2012, the Board informed the Veteran that the Veterans Law Judge who had conducted a September 2011 hearing was no longer employed by the Board and provided him an opportunity to testify at another hearing. He was told that if he did not respond within 30 days, the Board would assume that he did not want a hearing. The Veteran has not responded. The issue of entitlement to service connection for residuals of traumatic brain injury is addressed in the remand that follows the decision below. FINDING OF FACT Throughout the claim period, the Veteran's degenerative joint disease of the thoracolumbar spine has likely approximated limitations of forward flexion of the lumbar spine to 30 degrees or less. CONCLUSION OF LAW Throughout the claim period, the criteria for a 40 percent disability rating for degenerative joint disease of the thoracolumbar spine have been met. 38 U.S.C.A. §§ 1155, 5103A, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 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 held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent re-adjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in May 2009 from the RO to the Veteran, which was issued prior to the RO decision in July 2009. An additional letter was issued in January 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of the claim for a higher rating. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded VA examinations . McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and ultimately provided information necessary to apply the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background By a rating action in December 2007, the RO granted service connection for degenerative joint disease, thoracolumbar spine, evaluated as 10 percent disabling, effective July 12, 2007. The Veteran's claim for an increased rating for his lumbar spine disorder (VA Form 21-4138) was received in April 2009. Submitted in support of the claim were VA progress notes dated from November 2008 to June 2009. These records do not reflect any findings pertaining to the Veteran's spine disorder. The Veteran was afforded a VA examination in July 2009. At that time, he claimed that his back pain was getting worse; his pain medication had been increased from 4 times per day to 5 times per day. The Veteran indicated that he had tried physical therapy in the past without response. The Veteran stated that his entire back hurt, including his legs. The Veteran reported having gone to the emergency room approximately 5 times over the previous year for back pain. The Veteran indicated that the pain in his thoracic spine was constant at a severity of 2 to 3 with pain medications and 9 to 10 without medications; he described the pain in his lumbar spine as being constant at a severity of 1 to 2 with pain medications and 6 to 7 without medications. The Veteran stated that the pain in his thoracic spine felt like "sticking knife between the shoulder blades." He described the pain as constant with a severity of the pain being 10 out of 10. The Veteran described the pain in his lumbar spine as "dull" but a constant shooting pain; he also described it as being constant and having a severity of a 6 out of 10. The Veteran reported radiating pain down both legs to his feet. On examination, the Veteran's gait and posture were described as normal; he had a slight limp. There was no flattening, lordosis, kyphosis, or scoliosis of the spine. No ankylosis was noted. No spasm, atrophy or guarding was noted. The Veteran had tenderness and pain with motion of the thoracolumbar spine. Forward flexion was from 0 degrees to 90 degrees, with pain starting at 20 degrees. The examiner noted that the Veteran had pain with active and passive motion, as well as after repetitive use. Extension was from 0 degrees to 30 degrees, with pain starting at 20 degrees. The Veteran had pain with passive and active motion as well as after repetitive use. Lateral flexion was from 0 degrees to 30 degrees, bilaterally, with pain starting at 20 degrees. Left lateral rotation was from 0 degrees to 30 degrees, with pain starting at 15 degrees; and right lateral rotation was from 0 degrees to 25 degrees, with pain starting at 15 degrees. X-ray study of the lumbar spine revealed mild wedging of the mid to lower dorsal vertebral bodies but no gross compression was identified. It was noted that the Veteran was currently employed full time as a corrections officer; he had lost 2 to 3 days in the past 12 months. The pertinent diagnosis was thoracolumbar spine strain. The examiner noted that the effects of the lumbar spine on the Veteran's occupational activities included decreased mobility, problems with lifting and carrying, lack of stamina and pain. Subsequently received were VA progress notes dated from November 2007 to July 2010, which show that the Veteran received clinical evaluation and treatment for his low back disorder. During a clinical visit in July 2010, the Veteran complained of chronic back pain. It was noted that an MRI of the lumbar spine, performed in March 2009, revealed no significant narrowing. Following an evaluation, the assessment was chronic low back pain. At his personal hearing in September 2011, the Veteran testified that his back hurts every day; he stated that he sometimes cannot deal with the pain. The Veteran indicated that he had been prescribed bed rest six times in the past 12 months. The Veteran related that he had a TENS unit that he used every day for his back, and he takes medication for the pain. The Veteran stated that it was very difficult for him to perform certain activities such as yard work, and he was only able to walk about one hundred yards. The Veteran indicated that his doctor has recommended surgery on his back, but he is anxious about having back surgery. The Veteran was afforded another VA examination in March 2012, at which time he reported constant pain in the entire thoracolumbar spine. He denied any flare-ups. On examination, forward flexion was from 0 degrees to 60 degrees, with pain starting at 30 degrees. Extension was to 15 degrees with pain. Lateral flexion was to 20 degrees bilaterally, with no objective evidence of painful motion. Lateral rotation was to 30 degrees, with no objective evidence of painful motion. It was noted that the Veteran had additional limitation of motion of the thoracolumbar spine. It was noted that the Veteran had less movement than normal; and he experienced interference with sitting, standing and/or weight bearing. The examiner noted tenderness, muscle spasm and guarding of the spine. No atrophy was noted. Straight leg raising was negative. The examiner stated that the Veteran had no other neurologic abnormalities or findings related to his thoracolumbar spine condition. He also stated that the Veteran does not have intervertebral disc syndrome. An x-ray study of the lumbar spine revealed a slight levoscoliosis at the thoracolumbar junction; the pedicles appear intact and there is no evidence of fracture or significant disc space narrowing. The pertinent diagnosis was degenerative joint disease. The examiner stated that the 5 degrees of loss of flexion after repetitive testing. III. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board also notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. 38 C.F.R. § 4.59. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Throughout the appeal, the low back disability has been rated under Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. See 38. C.F.R. § 4.71a, Diagnostic Code 5242. The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 40 percent evaluation is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. In light of the above clinical findings, the Board finds that a disability rating of 40 percent is warranted for the Veteran's low back disability during the entirety of the claim period. Such a rating is based on a limitation of the Veteran's lumbar spine range of motion. As noted above, a 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, unfavorable ankylosis of the entire thoracolumbar spine. In this case, the evidence shows that the Veteran's low back disability likely approximates forward flexion to 30 degrees or less, and his lumbar spine range of motion is limited by objective evidence of pain. In this regard, during the July 2009 VA examination, while the examiner reported a forward flexion to 90 degrees, it was noted that the Veteran had pain with motion starting at 20 degrees. More recently, in March 2012, the examination report noted a forward flexion of the thoracolumbar spine to 60 degrees, the Veteran had pain starting at 30 degrees. Consequently, giving due consideration to additional limitations caused by such things as pain when determining the level of functional loss due to the Veteran's lumbar spine disability, in this case, the objective evidence of record reflects that the Veteran's low back disability has as likely as not been manifested by lumbar spine flexion to 30 degrees, to include pain. See DeLuca, 8 Vet. App. 202. As such, the Board finds that resolving reasonable doubt in the Veteran's favor, a 40 percent disability rating is warranted for the Veteran's low back disability during the entire period on appeal as a result of the additional functional impairment caused by pain. However, the Board finds that a disability rating higher than 40 percent disabling is not warranted for this time period under the General Rating Formula for Diseases and Injuries of the Spine. Specifically, the medical evidence simply does not show an unfavorable ankylosis of the Veteran's entire thoracolumbar spine during the time period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5242; see also DeLuca, 8 Vet. App. 202. While the Veteran testified, in September 2011, that he required bed rest on 5 occasions in the 12-month period due to his low back disability, there is no objective evidence of record that any physician has ever prescribed bed rest as a result of the Veteran's back pain, and there is no evidence of any incapacitating episodes. Additionally, there has been no showing of neurologic impairment that might be rated separately. The assignment of an extra-schedular rating has also been considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the Veteran's service-connected lumbar spine disability has resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation. The symptoms experienced by the Veteran are the very ones contemplated by the rating criteria. Accordingly, the Board finds that the impairment resulting from the Veteran's spine disorder is appropriately compensated by the currently assigned schedular rating. A referral for consideration under 38 C.F.R. § 3.321(b) is not required. In summary, for the reasons expressed above, the Board finds that the criteria are met for the assignment of a 40 percent rating for degenerative joint disease of the thoracolumbar spine throughout the claim period. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a 40 percent rating for degenerative joint disease of the thoracolumbar spine is granted for the entirety of the claim period, subject to the laws and regulations governing monetary awards. REMAND Another remand is required with respect to the issue of entitlement to service connection for residuals of traumatic brain injury. The development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, in the Introduction, the Board remanded the case to the RO in January 2012. In its remand, the Board directed that the Veteran be afforded a VA examination in order to determine the nature and etiology of any residuals of a traumatic brain injury. The examiner was asked to provide an opinion as to whether any identified chronic traumatic brain injury residuals had their onset during active service, or are etiologically related to the Veteran's service in Iraq. The examiner was also asked to provide a clear rationale for all opinions given. Pursuant to the remand directives, the Veteran was afforded a VA examination in March 2012. Following the examination, the VA examiner stated that there was no evidence of residuals of TBI; therefore, an opinion regarding the etiology of any residuals of TBI is not warranted. However, in response to the question of whether the Veteran now has or has ever had a traumatic brain injury or any residuals of TBI, the examiner answered yes, and provided a diagnosis of Traumatic Brain Injury. Consequently, it is not clear whether the examiner believed the Veteran currently experiences any residuals of a traumatic brain injury. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA neurological examination to determine the nature and etiology of the claimed traumatic brain injury (TBI) or any residuals of a TBI. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests and studies, and any other diagnostic procedures deemed necessary, should be conducted. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran experiences any residuals of a TBI; and, if so, whether any such disability is related to military service, including his claimed concussion in Iraq. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. A rationale should be associated with any conclusions reached. The medical reasons for accepting or rejecting the Veteran's history and report of continued symptoms should be set forth in detail. 2. The agency of original jurisdiction (AOJ) should ensure that all requested actions have been accomplished. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AOJ should readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any benefit sought is not granted, both the Veteran and his representative should be furnished an SSOC, which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs