Citation Nr: 1312600	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  06-36 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for radiculopathy of the bilateral lower extremities.

2.  Entitlement to a rating in excess of 20 percent prior to April 4, 2007, and in excess of 40 percent since April 4, 2007, for a low back disability.

3. Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	American Red Cross


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that increased the disability rating for the Veteran's service-connected low back disability from 10 to 20 percent disabling, effective May 9, 2005, denied entitlement to service connection for right lower extremity radiculopathy, and denied a TDIU rating.  A May 2007 rating decision increased the rating for the low back disability from 20 to 40 percent disabling, effective April 4, 2007.  However, as that grant does not represent a total grant of the benefits sought on appeal, the claim for an increased rating for a low back disability remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's case was previously remanded by the Board in May 2008, July 2009, November 2010 and March 2012 for further evidentiary development.  It now returns for appellate review.  The Board finds that the RO substantially complied with the dictates of the remands.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1.  The Veteran's radiculopathy of the lower extremities is not related to service or his service-connected low back disability. 

2.  Prior to April 4, 2007, the Veteran's spine was not ankylosed, and his thoracolumbar flexion was not limited to 30 degrees or less.

3.  Subsequent to April 4, 2007, the Veteran's spine has not been ankylosed.

4.  The weight of the competent and probative evidence indicates that the Veteran's service-connected disability does not preclude him from securing or following substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for service connection for radiculopathy of the bilateral lower extremities are not met.  38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The criteria for a rating in excess of 20 percent prior to April 4, 2007, and in excess of 40 percent since April 4, 2007, for a low back disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5235 (2012).

3.  The criteria for a TDIU have not been met.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

For the service connection claim and claim for a TDIU, the duty to notify was satisfied by way of a letter sent to the Veteran in August 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the service connection and TDIU claims and of his and VA's respective duties for obtaining evidence.  Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's service connection claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition.

For the increased rating claim, the duty to notify was not satisfied prior to the initial adjudication of the claim.  VA sent the Veteran a letter in May 2005 notifying him that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating.  The letter did not inform him of the requirements to obtain higher ratings or of the need to submit evidence of how such worsening effected his employment.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009).  Corrective notice was sent in May 2008.  Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has he been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in February 2009 after the notice was provided.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal, as the timing error did not affect the essential fairness of the adjudication.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records, as well as identified private and VA medical treatment records, have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board has also reviewed the Veteran's physical claims file and electronic file on the "Virtual VA" system to insure a total review of the evidence.  Moreover, the Veteran was also provided with multiple VA examinations in conjunction with the claims on appeal.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).

The Veteran had VA examinations in June 2005, August 2005, and April 2007.  The examiners examined the Veteran and detailed his low back and related symptomatology in the examination reports but did not review the claims file; however, as the increased rating claim concerns the current severity of the low back disability, the Board finds that the examiners' inability to review the claims file is not prejudicial to the Veteran and that the reports are adequate for rating purposes.  To the extent that the examination reports address the etiology of his bilateral lower extremity radiculopathy, the reports are inadequate for rating purposes as the opinions provided, if any, did not take the Veteran's medical history into consideration.

In August 2008, a VA examiner provided an addendum report to the April 2007 VA examination report.  The addendum report is adequate as it was based on a complete review of the evidence of record, consideration of the Veteran's lay statements, and review of the April 2007 examination report.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The examiner provided an opinion addressing the etiology of the Veteran's bilateral lower extremity radiculopathy.  While the examiner found it speculative to relate the radiculopathy to the service-connected low back disability or to the original in-service injury, the opinion was supported by rationale.  Therefore, the opinion is adequate for rating purposes.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting that the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative.").

The Veteran had a VA neurological examination in August 2009.  The examiner reviewed the claims file but failed to provide an etiology opinion for the claim seeking service connection for radiculopathy of the lower extremities.  Therefore, the examination report has no probative value.

The Veteran had a VA spine examination in October 2009.  The examiner examined the Veteran and detailed his low back symptomatology in the examination report but did not review the claims file; however, as the increased rating claim concerns the current severity of the low back disability, the Board finds that the examiner's inability to review the claims file is not prejudicial to the Veteran and that the report is adequate for rating purposes.

In December 2010, the Veteran had a VA examination of the spine.  The examiner provided an opinion with supporting rationale regarding the impact of his service-connected low back disability on his ability to work.  This examination report is adequate as it was based on a complete review of the evidence of record, consideration of the Veteran's lay statements, and a clinical examination of the Veteran.

In April 2012, the Veteran had a VA examination addressing his low back disability.  The examiner reviewed the claims file, examined the Veteran, and provided detailed symptoms of the current severity of the low back disability; therefore, the examination report is adequate for rating purposes.  The Veteran also had a VA examination for his claim seeking service connection for radiculopathy of the lower extremities.  The examiner provided an opinion supported by rationale addressing the etiology of his radiculopathy.  This medical examination was adequate as it was based on a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran.

A May 2012 VA examination report also addresses the etiology of the Veteran's radiculopathy.  The opinion was supported by rationale.  This medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran.

There is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  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 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

II. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

In this case, service treatment records indicate that the Veteran had a compression fracture of L1 in 1968.  A December 1969 service treatment record indicates that the Veteran did not have a history of paralysis, numbness, or weakness of the legs.  He also denied having radiating pain.  Radiculopathy was not noted on the January 1970 separation examination.

In March 1971, the Veteran had a VA examination during which he admitted having low back pain but denied radiation of pain.  Two months later, in May 1971, he told a private provider, Dr. A. S. W., Jr, that he had pain radiating down the left leg.  In July 1971, he reported radiation of pain to the right hip.  Radiculopathy was not diagnosed.  He denied radiculopathy during an April 1979 VA examination.

The Veteran had a VA examination in June 2005 for his service-connected low back disorder.  The examiner provided an opinion linking the Veteran's reported weakness and numbness of the right lower extremity to his low back disorder.  While this opinion appears to support the Veteran's claim for service connection, the examiner did not provide a rationale for his opinion, and the examiner did not have the claims file for review; therefore, the examiner's opinion is not adequate for rating purposes.

The Veteran had a VA examination in August 2005.  The examiner indicated that while the Veteran had a complaint of right lower extremity radiculopathy in the L4-L5 distribution, he did not have any pathology at L1, the sight of the compression fracture with anterior wedge.  He opined that the mild compression fracture with anterior wedge would not cause L4-5 radiculopathy in the Veteran's right lower extremity.  Thus, he found it inconceivable that the service-connected L1 small anterior wedge compression fracture was related to the right lower extremity.  Notably, the examiner did not have the claims file for review and did not address the relationship between radiculopathy and service, if any; therefore, the examination report is not adequate for rating purposes.

In a December 2005 statement, the Veteran said his private provider, Dr. G. A. C., told him that his radiculopathy was due to a worsening of his L1 compression fracture.  However, treatment records from Dr. G. A. C. do not support the Veteran's contentions.

Radiculopathy of the right lower extremity was diagnosed in April 2007 during a VA examination of the service-connected low back condition.  The examiner indicated that the condition was right L4-L5 radiculopathy that was unrelated to the L1 compression fracture.  The examiner did not indicate review of the claims file and did not provide a rationale for the opinion; therefore, the opinion is not adequate for rating purposes.

In August 2008, a different VA examiner provided an addendum opinion to the April 2007 examination report.  The examiner reviewed the claims file.  In the opinion, the examiner said the medical evidence was not sufficient and that it would be mere speculation to state that the Veteran's current condition is a result of his service-connected injury or a result of the original in-service injury in 1968.  He indicated that the treatment the Veteran has received in the past several years is irrelevant regarding an injury that occurred 40 years ago.

The Veteran had another VA neurological examination in August 2009.  In the discussion, the examiner failed to provide an opinion regarding the etiology of the Veteran's radicular pain; therefore, the examination report has no probative value.  

The Veteran had VA neurologic examination in April 2012.  The examiner reviewed the claims file and diagnosed radiculopathy.  The examiner opined that the disc rupture at L4-L5 and associated radiculopathy were less likely as not caused by or the result of the service-connected low back disability.  The examiner also found it unlikely that the symptoms of radiculopathy were related to the injury sustained while in the military.  The examiner said the Veteran had a well-healed vertebral fracture but does not have an acute herniation of a disc.  He said the condition was the result of normal wear and tear of the lumbar spine.  The examiner also found that the L4-L5 disc rupture was less likely as not due to or the result of the service-connected low back disability.  The examiner found that the symptoms of radiculopathy were related to degeneration of the disc of the lumbar spine and that the degeneration was not likely related to injury in the military.  The examiner found no literature supporting a finding that vertebral fractures led to degenerative disc disease.  He said degenerative disc disease is a multifactural process.

Finally, the Veteran had a VA examination in May 2012.  The examiner diagnosed bilateral S1 radiculopathy.  In the discussion, the examiner indicated that the Veteran injured his back 43 years ago and that he worked various jobs since that time.  The examiner found that through normal wear and tear and the aging process, the Veteran developed other low back problems.  His initial injury in 1968 was that of a L1 compression fracture which could produce back pain but would not cause radiculopathy without a coincident herniated disc or other additional structural pathology which the examiner did not find on MRI imaging.  The examiner said it would be speculation to relate his current finding of L4-L5 radicular problems and the bilateral S1 radiculopathy found on EMG to his 43 year old L1 compression fracture.

The Board has also considered all private treatment records and VA treatment records.  However, while some records indicate complaints and/or diagnosis of radiculopathy, none indicate a relationship between the radiculopathy and service or the Veteran's service-connected low back disability.

The Board has considered all of the medical and lay evidence but finds that the preponderance of the evidence weighs against a finding of service connection for radiculopathy of the lower extremities on a direct and secondary basis.  The Veteran did not express radicular pain during service, and while he reported some radicular pain in May and July 1971, radiculopathy was not diagnosed, and he denied radicular pain in March 1971 and April 1979.  At most, the May 2012 examiner found it would be speculative to relate the Veteran's radiculopathy to his service-connected low back disability.  The April 2012 examiner found it less likely as not that the disc rupture associated with the radiculopathy was due to the service-connected disability or the initial in-service injury.  Each examiner's opinion was supported by rationale.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, bilateral lower extremity radiculopathy falls outside the realm of common knowledge of a lay person.  In this regard, while the Veteran can competently report the onset and symptoms of numbness, any actual diagnosis of radiculopathy requires objective testing to diagnose, and can have many causes.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  

Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current bilateral lower extremity radiculopathy requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  To the extent that the Veteran himself believes that he has current bilateral lower extremity radiculopathy that is due to service or a service-connected disability, as a lay person, he is not shown to possess any specialized training in the medical field.  The Veteran's opinion as to the etiology of his current bilateral lower extremity radiculopathy is not competent medical evidence, as such question requires medical expertise to determine.  Id.  In any event, the Board concludes that the medical evidence, which reveals that bilateral lower extremity radiculopathy is not due to service, or a service-connected disability, is of greater probative value than the lay contentions of the Veteran.    

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for radiculopathy of the lower extremities and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

III. Increased Rating

The Veteran seeks a rating in excess of 20 percent prior to April 4, 2007, and in excess of 40 percent since April 4, 2007, for his low back disability.  Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The Rating 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, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  However, where VA's adjudication of a claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms, which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating.  38 C.F.R. § 4.21 (2012).  Therefore, with respect to each of the claims herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The RO rated the Veteran's back disability under 38 C.F.R. § 4.71a, Diagnostic Code 5235, vertebral fracture or dislocation, which provides that the disability shall be rated with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, under the General Rating Formula for Diseases and Injuries of the Spine (General Formula).

Under the General Formula, a 20 percent rating is assigned for 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.  A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling.  38 C.F.R. § 4.71a.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.  Id. at Note (1).

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 is zero to 30 degrees, and left and right lateral rotation is 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.  Id. at Note (2).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to 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, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran had a VA examination in June 2005.  The Veteran complained of worsening pain, described as constant, sharp, and stinging in nature.  Flare-ups occurred once or twice per week.  He reported weakness of the right extremity, fatigability, limitation of repetition, and lack of endurance.  He denied bowel, bladder, and erectile dysfunction.  He could walk two blocks and had had no incapacitating episodes in the past 12 months.  The examiner observed a right limping gait, diffuse paraspinal tenderness, muscle spasm, and pain and fatigue with movement.  Range of motion (ROM) of the thoracolumbar spine measured to 40 degrees flexion; 10 degrees extension; 30 degrees right and left lateral flexion; and 30 degrees right and left lateral rotation.  Imaging studies revealed lumbar scoliosis, a mild anterior wedge compression of L1, and an anterior osteophyte from T12 to L4.

In August 2005, the Veteran had a VA examination for his service connection claim for radiculopathy.  Imaging studies showed osteopenia, mild scoliosis, and mild degenerative changes of the lumbar spine.  An L1 compression fracture was not indicated.  An October 2005 note from Dr. G. A. C. indicates that the Veteran had a lumbar ruptured disc which was worsening.

In a December 2005 statement, the Veteran said he could not do heavy lifting and that the only reason he was working was because he was a business owner.  He said his back easily "goes out".

During the April 2007 VA examination, the Veteran reported monthly flare-ups of pain that would last 10 to 15 days.  Pain was sharp and stinging and radiated to his right leg down to his knee.  Pain measured a 9 out of 10 on the pain scale and eased to a level 4 or 5 with medication.  He said he had had to increase his pain medication.  He denied bowel, bladder, and erectile dysfunction and reported numbness, paresthesias, leg or foot weakness, falls, and unsteadiness.  He had a history of fatigue, decreased motion, stiffness, weakness, and pain.  He had no physician-ordered bed rest in the prior year.

Objective symptoms included pain with motion and antalgic gait.  Flexion of the thoracolumbar spine measured to 20 degrees; extension to 15 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20 degrees; and lateral rotation to 30 degrees, bilaterally.  The Veteran expressed pain at the end ranges of motion with each movement.  He did not experience additional loss of motion with repetitive use.  The examiner indicated that the vertebral fracture of L1 had lost less than 10 percent of its height since the last VA examination.  Imaging studies showed degenerative changes of the lower thoracic and upper lumbar spine, minimal retrolisthesis of L1/L2, and an old mild anterior compressed fracture of L1 that was stable.  The condition prevented recreational activities, sports, and exercise and moderately impaired his ability to perform chores and go shopping.  His condition mildly impacted his ability to travel.  Notably, the Veteran said he had retired in 2003.  The diagnosis included degenerative joint disease of the lower thoracic and upper lumbar spine, minimal retrolisthesis of L1/L2, and stable anterior compression fracture of L1.  Also diagnosed was right L4-L5 radiculopathy, which the examiner found unrelated to the L1 compression fracture.

An October 2009 VA examination report shows continued complaints of back pain with radiation to the right leg.  He said he could walk for about 15 minutes or for 1 to 2 blocks before his back pain would intensify.  He reported flare-ups, which could last weeks up to a month.  Pain worsened with lifting and was alleviated with medication.  He said he was a brick mason by trade but no longer performed manual labor.  He led a crew of workers in a supervisory role, but his back pain hindered his ability to navigate job sites.

The examiner observed a slightly antalgic gait.  Flexion of the thoracolumbar spine measured to 45 degrees; extension to 10 degrees; lateral flexion to 20 degrees, bilaterally; and lateral rotation to 15 degrees, bilaterally.  He had paraspinal muscle spasm on the right side and diffuse tenderness over the midline lumbar spine.  He had no loss of ROM but had increased pain with repetitive testing.  Imaging showed diffuse degenerative joint disease of the lumbar spine, a chronic appearing L1 compression fracture with L1 and L2 retrolisthesis, and grade 1 spondylosis of L4 on L5.  The assessment was old L1 compression fracture.  The examiner said the chronic low back condition impaired his ability to maintain his current job without significant pain.

The Veteran had another VA examination in December 2010.  He said pain was a 4 on the pain scale and flared to a 10 on a weekly basis.  He reported pain in his right thigh.  He said he could walk for 15 minutes or a quarter mile but that pain was worse when walking.  He last worked in 2008 as owner of a masonry company but had been unable to perform manual labor since 2003.  He had not been ordered on bedrest in the prior year.

Flexion of the thoracolumbar spine measured to 40 degrees, extension to 30 degrees, left lateral flexion to 20 degrees, right lateral flexion to 30 degrees, and lateral rotation to 20 degrees, bilaterally.  He had pain with movement.  He did not have additional loss of ROM with repetitive use; however, the examiner said it was conceivable that pain could further limit function.  The examiner could not determine the additional limitation of motion with any degree of medical certainty.  X-rays showed no significant change from the October 2009 images.  The impression was multilevel degenerative disc disease, lumbar spondylosis, and chronic low back pain.  The examiner said the significant back pain would limit the Veteran from doing heavy labor, such as masonry work, but that his condition was well within the expectations of someone who could perform sedentary work.  The examiner did not think the Veteran would be unable to perform a gainful, sedentary type employment or that he was unable to perform a job that would require moderate activity on the feet without heavy lifting based on his evaluation, history, physical, and review of the claims file.

The Veteran had a VA examination in April 2012.  The Veteran reported continued low back pain.  He said he started injections for pain relief.  Flare-ups occurred with prolonged standing or walking.  ROM testing showed flexion of the thoracolumbar spine to 40 degrees; extension to 20 degrees; lateral flexion to 20 degrees, bilaterally; and lateral rotation to 30 degrees, bilaterally.  Objective evidence of pain was observed at the end ROM for each test.  The Veteran had no additional loss of ROM with repetitive use testing.  The examiner said the Veteran had less movement than normal, pain on movement, and interference with sitting, standing, and/or weightbearing.  The examiner observed guarding or muscle spasm but said the condition did not result in abnormal gait or spinal contour.  The examiner observed radiculopathy and that the nerve root involved was L3-L4.  The examiner did not find intervertebral disc disease.  The examiner said the Veteran's condition, diagnosed as degenerative disc disease and radiculopathy, would prohibit the Veteran from performing an activity requiring heavy lifting or prolonged walking or standing.

The Board also considered private and VA treatment records, which show continued complaints of back pain, as well as the Veteran's lay statements indicating continued pain and interference with employment.

After reviewing the evidence, the Board finds that a rating in excess of 20 percent for the Veteran's service-connected back disability is not warranted prior to April 4, 2007.  During this period, the Veteran's flexion was not limited to 30 degrees or less or and he did not have favorable ankylosis of the spine.  The examiner observed pain but found no additional loss of motion after repetitive use or functional limitations due to pain, weakness, excess fatigability, or incoordination.  While the April 2007 VA examiner indicated that the back disability prevented or moderately impacted activities, the examiner did not indicate whether the impairments were due to the service-connected compression fracture or his non-service-connected degenerative joint disease.  Even if the Board assumes that the functional impairments were due to the service-connected compression fracture, the Board finds that the severity of the disability prior to April 2007 did not warrant a rating in excess of 20 percent as flexion was far greater than 30 percent.

Additionally, the Board finds that a rating in excess of 40 percent is not warranted from April 4, 2007.  Since April 2007, the Veteran's service-connected back disorder has not manifested as ankylosis of the spine.  Further, subsequent to the April 2007 VA examination report, the competent and credible evidence shows that flexion of the thoracolumbar spine measured in excess of 30 degrees without additional limitations after repetitive use and without additional objective factors such as weakness, excess fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202.  It is only with consideration of the Veteran's complaints of pain that the current 40 percent evaluation remains justified.  The record presents no basis for assignment of any higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5235.

The Board also notes that the Veteran's assertions and those of his representative, advanced in written statements, have been considered.  However, the Board finds that the lay assertions made in support of his claim for higher ratings are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's service-connected low back disability.  See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  As indicated above, the persuasive evidence indicates that the Veteran's symptoms are consistent with the currently assigned staged ratings.

Under the circumstances of this case, the Board finds that the Veteran's service-connected low back disability symptoms did not meet the criteria for a rating in excess of 20 percent prior to April 4, 2007, and have not met the criteria for a rating in excess of 40 percent since April 4, 2007.

The above determinations are based upon application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point has the Veteran's service-connected low back disability reflected so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extraschedular basis.  See 38 C.F.R. § 3.321(b) (2012).

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  The Veteran's service-connected low back disability was evaluated as a disease or injury of the spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5235, General Formula, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  Id.  As noted above, the disability did not limit the Veteran's flexion of the thoracolumbar spine to 30 degrees or less prior to April 4, 2007.  Further, the spine has not been ankylosed and has not been of the severity to equate to ankylosis of the spine.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the currently assigned staged disability rating.  Evaluations in excess of the current ratings are provided for certain manifestations, but the medical evidence demonstrates that those manifestations are not present in this case.  The criteria for the assigned 20 and 40 percent ratings reasonably describe the Veteran's disability level and symptomatology during the identified periods.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). 

IV. TDIU

Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).

Factors to be considered will include the veteran's employment history, educational attainment and vocational experience, but marginal employment is not to be considered substantially gainful employment.  38 C.F.R. § 4.16(a).  Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19 (2012).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R.         § 4.16(a).  Id.  Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1 (2001).

An assessment for extra-schedular referral requires consideration of the veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue.  38 C.F.R. § 4.16(b).  The issue at hand involves a determination as to whether there are circumstances in this case, apart from the non-service-connected conditions and advancing age, that would justify a total disability rating based on unemployability.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The fact that the veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such.  Id.  Rather, the veteran need only be capable of performing the physical and mental acts required by employment.  Id.  The schedular criteria contemplate compensating a veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability.  See 38 C.F.R. § 4.1.

Importantly, TDIU is predicated upon an inability to secure and follow "substantially gainful employment."  38 C.F.R. § 4.16(a).  For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Id.  Marginal employment may be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Id.  Consideration shall be given in all claims to the nature of the employment and the reasons for termination.  Id.

In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the United States Court of Appeals for Veterans Claims (Court) held that "substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history.

The claimant bears the burden of presenting and supporting his claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

In this case, the Veteran is service connected for a low back disorder which is currently rated 40 percent disabling.  His disability has not been rated 60 percent or more during the pendency of his claim; therefore he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a).

Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.  38 C.F.R. § 4.16(b).  As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis.

The Board has considered the Veteran's arguments but finds that referral for an extraschedular evaluation is not warranted because the evidence does not show that his service-connected low back disability renders him unemployable.  Specifically, in October 2009, the Veteran said he led a crew of workers in a supervisory role but his back pain hindered his ability to navigate job sites.  The examiner said the chronic low back condition impaired his ability to maintain his current job without significant pain.  However, in December 2010, a VA examiner said the significant back pain would limit the Veteran from doing heavy labor, such as masonry work, but that his condition was well within the expectations of someone able to perform sedentary work.  The examiner did not think the Veteran would be unable to perform a gainful, sedentary type employment or that he was unable to perform a job that would require moderate activity on the feet without heavy lifting based on his evaluation, history, physical, and review of the claims file.  The April 2012 VA examiner found only that the disability would prohibit the Veteran from performing an activity requiring heavy lifting or prolonged walking or standing.

Based on the foregoing, the Board finds that the preponderance of the evidence does not show that the service-connected low back disability prohibits substantially gainful employment.  As such, referral for extraschedular consideration of a TDIU is not warranted.  The appeal is denied.


ORDER

Service connection for radiculopathy of the bilateral lower extremities is denied.

A rating in excess of 20 percent prior to April 4, 2007, and in excess of 40 percent since April 4, 2007, for a low back disability is denied. 

TDIU is denied.




____________________________________________
JENNIFER HWA
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs