Citation Nr: 1312682	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-11 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for atrial fibrillation, including as secondary to service-connected low back syndrome with spondylolysis and spina bifida.

2.  Entitlement to service connection for sterility.

3.  Entitlement to a rating higher than 40 percent for service-connected low back syndrome with spondylolysis and spina bifida.

4.  Whether clear and unmistakable error (CUE) was committed in a September 1971 decision that assigned an initial noncompensable disability rating for low back disability and a December 1971 rating decision that denied an increased rating for low back disability.

5.  Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fleming, Counsel


INTRODUCTION

The Veteran had active military service from April 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  In the July 2008 decision, the RO granted the Veteran's petition to reopen a previously denied claim for service connection for atrial fibrillation and denied the claim on its merits.  The RO also denied the Veteran's claim for service connection for sterility and granted him an increased rating, to 20 percent, for his service-connected low back syndrome with spondylolysis and spina bifida.  In the September 2009 rating decision, the RO denied the Veteran's claim of CUE in September 1971 and December 1971 rating decisions.

Regardless of what the RO has done, however, the Board must address the question of whether new and material evidence has been received to reopen the Veteran's claim for service connection for atrial fibrillation.  This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Hence, the Board has characterized the claim for service connection for atrial fibrillation as a claim to reopen.

The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in December 2012.  A transcript of that hearing has been associated with the Veteran's claims file.

In an October 2012 statement, the Veteran stated that he wished to withdraw from appeal his claims for service connection for posttraumatic stress disorder, hypertension, and adjustment disorder.  In light of the Veteran's statements, the Board considers the identified claims to be withdrawn and no longer in appellate status. 

(The decision below addresses the Veteran's petition to reopen his previously denied claim of service connection for atrial fibrillation, as well as his claim for service connection for sterility and his claim for increase.  The remaining issues are addressed in the remand that follows the decision.)


FINDINGS OF FACT

1.  In a May 1999 rating decision, the RO denied the Veteran's claim for service connection for atrial fibrillation.  The Veteran did not appeal that decision.

2.  Evidence received since the May 1999 decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection, and raises a reasonable possibility of substantiating the claim.

3.  The Veteran does not experience sterility.

4.  The Veteran's low back syndrome with spondylolysis and spina bifida has been manifested by flexion of the lumbar spine no worse than 20 degrees, even when pain is taken into consideration; no ankylosis of the spine has been shown.


CONCLUSIONS OF LAW

1.  A May 1999 rating decision that denied the Veteran's claim for service connection for atrial fibrillation is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012).

2.  Since the prior final denial of the Veteran's claim for service connection for atrial fibrillation, new and material evidence has been received; hence, the requirements to reopen the claim have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  The Veteran does not have sterility that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

4.  The criteria for a rating higher than 40 percent for low back syndrome with spondylolysis and spina bifida have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim decided herein has been accomplished.

In this respect, through February 2007, May 2007, July 2007, October 2010, and August 2011 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claims.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims.

The Board also finds that the February 2007, May 2007, July 2007, October 2010, and August 2011 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession).  These requirements were met by the aforementioned February 2007, May 2007, July 2007, October 2010, and August 2011 letters.  Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the letters.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims decided herein.  The Veteran's service treatment records, as well as records of his post-service treatment, have been associated with the claims file.  The Veteran has not otherwise alleged that there are any outstanding medical records probative of the claims decided herein that need to be obtained.  Additionally, the Veteran and his representative have both submitted written argument, and the Veteran testified before the undersigned Veterans Law Judge at a hearing in December 2012.  Neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claims decided herein that need to be obtained.

The Veteran also underwent VA examination concerning his increased-rating claim in February 2007, February 2008, February 2009, and January 2012; reports of those examinations are of record.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the examinations obtained in this case are sufficient, as they are predicated on consideration of the private and VA medical records in the Veteran's claims file, as well as specific examination findings.  They consider the Veteran's statements and provide a rationale for the findings made, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to his increased-rating claim has been met.  38 C.F.R. § 3.159(c)(4).  

As to the Veteran's claim for sterility, the Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case.
 
The Board is aware that no VA examination was provided to the Veteran in conjunction with his claim for service connection for sterility but notes that the record does not call for one.  See 38 C.F.R. § 3.159(c)(4) (2012).  In this case, as discussed below, there is simply no suggestion in the record that the Veteran has a current diagnosis of sterility.  As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet.  Duenas v. Principi, 18 Vet. App. 512, 517 (2004).  See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist)

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

II.  Analysis

A.  New and Material Evidence

In a May 1999 rating decision, the RO denied the Veteran's claim for service connection for atrial fibrillation.  The Veteran did not appeal, so the decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012).  In January 2007, the Veteran sought to reopen his claim.

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Regarding petitions to reopen filed on or after August 29, 2001, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new.  This analysis is undertaken by comparing newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Here, as indicated above, the last final denial pertinent to the claim for service connection for atrial fibrillation was the May 1999 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The Veteran filed his original application for service connection for atrial fibrillation in November 1998.  The RO denied the claim for service connection in May 1999 and, in so doing, found that the Veteran had not established a direct relationship between his claimed atrial fibrillation and service.  This decision was not appealed and therefore became final.  The Veteran now asserts that he has atrial fibrillation that is related to service or, in the alternative, to his service-connected low back syndrome with spondylolysis and spina bifida or to the medications used to treat his low back disorder.  As a result, the Veteran contends that service connection for atrial fibrillation is warranted.

Evidence of record in 1999 included the Veteran's service treatment records and report of a VA examination conducted in February 1999.  Review of the Veteran's service treatment records reflects that they are silent as to any complaints of atrial fibrillation or any heart problems during service.  At the February 1999 VA examination, the examiner diagnosed the Veteran with atrial fibrillation but provided no opinion as to its etiology.

Evidence added to the record since the RO's May 1999 denial concerning the Veteran's claim for service connection for atrial fibrillation includes records of treatment he has received from both private and VA treatment providers since that date, as well as VA examination conducted in October 2010.  The Veteran has also submitted multiple statements concerning his belief that his service-connected back disorder, and the medication he was prescribed to treat that disorder, may have caused or worsened his atrial fibrillation.  Although the October 2010 VA examiner opined that the disorder was not likely related to service, the examiner did not address the possibility that the Veteran's back disorder, or the medication he takes to treat it, could have caused or aggravated the atrial fibrillation.  In that connection, the Veteran has submitted multiple documents, including an FDA press release, addressing a potential link between the drug Darvon and heart problems such as atrial fibrillation.  The Veteran's service treatment record confirms that he was prescribed Darvon while in service to treat his back pain.  As such, the Board finds that the evidence, in the form of the Veteran's statements and supporting documentation from the FDA, is "new" in the sense that it was not previously considered by agency decision makers.  The Board also finds that the newly submitted evidence is not cumulative or duplicative of evidence previously considered and is thus "material" for purposes of reopening the Veteran's claim.

In this regard, the Board notes that, at the time of the May 1999 rating decision, the RO denied the Veteran's claim for service connection because he had not established that there was an etiological link between his atrial fibrillation and service.  Prior to the receipt of the above-identified evidence, the RO had not received or reviewed evidence supporting the Veteran's contention that he has atrial fibrillation that is related to the medication used to treat his service-connected back disability.  Newly submitted evidence, however, reflects a possibility that the Veteran's atrial fibrillation may have developed secondary to medication he was given to treat his service-connected low back disorder.  Because the evidence submitted by the Veteran attests to such a possibility, the Board finds that the evidence adds to the record in a way that it should be considered new and material.

The Board finds, therefore, that the identified evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).  Accordingly, new and material evidence has been submitted, and the criteria for reopening the previously denied claim for service connection for atrial fibrillation have been met.

B.  Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Relevant medical evidence of record consists of the Veteran's service treatment records and records of his ongoing treatment from both private and VA treatment providers.  Review of the Veteran's service treatment records reveals that the records are silent as to any complaints of or treatment for sterility.  Similar, neither private nor VA post-service treatment records document any complaint, diagnosis, or treatment for sterility at any time since the Veteran's separation from active duty.  The only evidence submitted by the Veteran is his multiple statements, which offer as evidence of his sterility the fact that he did not father any children after his separation from active duty, despite having had a child prior to his entrance into active duty.  The Veteran has not contended that he was actually diagnosed or treated in service, or at any point thereafter, for sterility.  

Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sterility.  With regard to this claim, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.  In this case, there is absent from the record competent evidence showing any sterility, or linking any current symptoms of the claimed disability, to the Veteran's period of service.  No medical professional provides findings or opinions to that effect, and, neither the Veteran nor his representative has presented or alluded to the existence of any such medical evidence or opinion.  There is simply a lack of any medical evidence demonstrating that the Veteran has a current diagnosis of sterility.  See 38 C.F.R. § 3.303.  

As noted above, the Veteran has reported that he believes his sterility resulted from exposure to radiation in the form of multiple X-ray studies of his lumbar spine while in service.  In that connection, the Veteran has contended on multiple occasions that he underwent many radiological studies of his spine while on active duty and that he was unable to conceive a child with his wife following his return from active duty, despite having fathered a child prior to entering service.  However, the Board notes that the Veteran is not competent to provide a medical opinion as to the onset of a disability such as sterility that requires medical expertise and laboratory testing to diagnose.  See Washington v. Nicholson, 19 Vet. App. 362 (2005).

The Board notes that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  Notwithstanding that fact, the lack of contemporaneous medical records is something that the Board can consider and weigh against a Veteran's lay evidence.  Id.  In this case, although the Veteran has contended that he has suffered from sterility since service, the Board finds persuasive that there is no notation at any point in the Veteran's service treatment records concerning sterility, or any symptoms that might be associated with the claimed condition.  Likewise, there is no medical evidence demonstrating that the Veteran has sought medical treatment at any time for sterility or has complained of any associated symptoms to any medical professional at any time since his separation from service.

Thus, in this case, when weighing the evidence of record, the Board finds probative the fact that the Veteran has never been diagnosed with or treated for sterility at any time, either during or after service.  Consequently, the Board finds that the Veteran's assertion of having developed sterility due to service is not credible.  In addition, the Board notes that, although the Veteran is competent to report symptoms observable to a layperson, such as pain, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition such as sterility.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection in this case.  Lathan v. Brown, 7 Vet. App. 359, 365 (1995).  As a result, in this case, when weighing the evidence of record, the Board finds compelling the lack of any medical evidence establishing that the Veteran has diagnosed sterility.

Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for sterility.

The Board does not question that the Veteran experienced multiple radiological studies of his lumbar spine during service.  As noted above, the Veteran is competent to report being exposed to such conditions in service.  Nevertheless, under the circumstances-given the lack of a current diagnosis of or any evidence of medical treatment for any sterility-the Board concludes that the greater weight of the evidence is against the claim.  Service connection for sterility is therefore not warranted.  The Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury.  See 38 U.S.C.A. §§ 1110, 1131.  In the absence of a current diagnosed disability, the claim for service connection cannot be granted.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

C.  Increased Rating

The Veteran contends that his low back syndrome with spondylolysis and spina bifida has been more disabling than indicated by the assigned rating.  He therefore contends that a higher rating is warranted.

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim.  The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The Veteran's service-connected low back syndrome with spondylolysis and spina bifida is currently rated under Diagnostic Code 5237, for lumbosacral strain, under which the disability is evaluated (preoperatively or postoperatively) under the General Rating Formula for Diseases and Injuries of the Spine.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237.

Following the criteria, Note (1) provides:  evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  (Although the originating agency has awarded a separate compensable rating for radiculopathy of the right lower extremity as a result of the service-connected arthritis of the lumbar spine, the Veteran has not disagreed with the rating assigned.  Consequently, the Board has limited its decision to the rating for the spine itself.)

Note (2) provides 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.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4) requires that each range of motion measurement be rounded to the nearest five degrees.

Note (5) provides that 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.

Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Relevant evidence of record consists of VA examinations performed in February 2007, February 2008, February 2009, and January 2012.  Report of the February 2007 examination reflects that the Veteran complained of having had severe back pain since service that continued to grow worse and occasionally flared up.  He stated that he experienced mild radiating pain and weakness in his right lower extremity but denied any numbness in his lower extremities.  Physical examination revealed no muscular atrophy or spasms, and range-of-motion testing found flexion to 60 degrees with pain at the endpoint of motion and increased pain on repetition.  Some decreased lower extremity muscle strength was noted, but sensation was intact and reflexes were normal.  Similarly, report of the February 2008 VA examination reflects that the Veteran complained of constant pain in his low back that flared up a few times per year.  He stated that it occasionally radiated into his right leg and knee but denied numbness in the lower extremities.  He denied experiencing any incapacitating episodes.  On physical examination, the Veteran was found to have a slow, antalgic gait, but was able to walk unassisted.  Forward flexion was to 65 degrees without pain on repetitive motion.  No radicular symptoms were noted, and sensation testing was intact to the lower extremities bilaterally.  

Report of the February 2009 examination reflects that the Veteran again complained of sharp pains in his low back that occasionally radiated down the right lower extremity.  He complained of flare-ups with weather changes lasting several minutes and stated that the pain "slows [him] down."  He again denied incapacitating episodes.  Range-of-motion testing revealed flexion to 20 degrees without pain, with no decrease in function on repetitive-motion testing.  Neurological testing of the lower extremities was normal.  Similarly, report of the January 2012 VA examination reflects that the Veteran complained of being unable to works secondary to his back pain.  He stated that he experienced chronic pain that worsened with prolonged standing, walking, or bending.  The Veteran denied radicular pain into his lower extremities and reported that he experienced flare-ups every two weeks lasting two to three days.  Range-of-motion testing revealed the Veteran to have flexion to 40 degrees without pain on repetitive-motion testing.  The examiner noted decreased movement, fatigability, and pain in the lumbosacral spine.  Neurological examination was normal, and the examiner specifically found the Veteran to have no radiculopathy or other neurological complications.  Further private and VA treatment records reflect that the Veteran has continued to seek treatment for his low back disability.

Based on the February 2007, February 2008, February 2009, and January 2012 VA examination reports, as well as his ongoing private and VA treatment records, the Board finds that a disability rating higher than 40 percent is not warranted under the current General Rating Formula for Diseases and Injuries of the Spine.  For the entirety of the appellate period, the Veteran's service-connected low back syndrome with spondylolysis and spina bifida has been manifested by disability equating to no worse than a limitation of flexion to 20 degrees, even when pain on motion is taken into consideration as per DeLuca, supra.  Ratings of 50 percent and 100 percent ratings are not warranted because the Veteran does not experience ankylosis of his spine.  In particular, no VA examiner has found the Veteran to have ankylosis, and no private or VA treatment providers have made any such findings in his treatment records.  Therefore, the Board finds that a rating in excess of 40 percent for service-connected low back syndrome with spondylolysis and spina bifida is not warranted.  See 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5237 (2012).

In reaching this decision, the Board acknowledges that, as discussed above, the functional impact of the Veteran's low back disability has been considered by his VA examiners, and when reporting the losses experienced by the Veteran there has been no indication that his ability to function is limited beyond the limits of motion specifically described in the February 2007, February 2008, February 2009, and January 2012 VA examination reports.  The evidence also reflects that the VA examiners considered the Veteran's pain on motion, including repetitive motion, when reporting on the range of motion of his lumbar spine.  As such, there is simply no indication that the Veteran's disability, even with consideration of flare-ups due to pain, would approximate a 50 percent rating for unfavorable ankylosis of the thoracolumbar spine, or for unfavorable ankylosis of the entire spine, at any point during the appellate period.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07; see also Johnston v. Brown, 10 Vet. App. 80 (1997) (when receiving the maximum rating for limitation of motion, further analysis under DeLuca is not required).  The Board acknowledges the Veteran's statements to the effect that his lower back disorder causes him pain and functional impairment, especially when the disability flares up.  Here, however, the Board finds that the current 40 percent rating for the period takes into consideration any interference with the Veteran's overall function of his lumbar spine due to his service-connected low back syndrome with spondylolysis and spina bifida, including both pain on motion and flare-ups of the disability.

The Board also finds that there are no other potentially applicable diagnostic codes by which to consider the Veteran's service-connected low back syndrome with spondylolysis and spina bifida.  In this case, while there is radiological evidence of degenerative changes of the lumbosacral spine, the Veteran is being rated for limitation of motion of the lumbosacral spine associated with such degenerative changes.  Furthermore, the maximum rating otherwise allowable for arthritis in the absence of limitation of motion is 20 percent.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  The Board also notes, as discussed above, that there is no evidence that the Veteran's degenerative changes of the lumbar spine have resulted in disability comparable to ankylosis at any time during the appeal period, rendering higher ratings under the current General Rating Formula for Diseases and Injuries of the Spine inappropriate.  The Board further acknowledges the Veteran's contentions of experiencing occasional radiating pain and numbness into his right lower extremity.  However, the Veteran's multiple VA examinations have specifically found no evidence of radiculopathy or any other underlying neurological disability, and, most recently in December 2012 at his hearing before the undersigned Veterans Law Judge, the Veteran specifically denied experiencing any radicular symptoms.  Thus, the Board finds that no other separate rating for neurological disability is warranted.

D.  Extra-Schedular Evaluation

The above determinations are based upon consideration of applicable rating provisions.  The Board finds that the Veteran's disability picture is not so exceptional that the available schedular evaluations for that service-connected disability are inadequate.  See 38 C.F.R. § 3.321(b)(1).  The symptoms of his lumbar spine disability have been accurately reflected by the schedular criteria.  Specifically, the pain he experiences, including on repetitive motion and during flare-ups as discussed above, is accounted for by the limitation-of-motion ratings.  The examiners in this case specifically addressed the pain in the range-of-motion studies, and the ratings contemplate it.  38 C.F.R. §§ 4.40, 4.45.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted for any period of the claim.  See Thun, 22 Vet. App. at 115-16.

In support of his claim, the Veteran has submitted statements from him, his sister, and his mother, that describe the daily pain he experiences.  He provided testimony to the same effect at his December 2012 hearing.  The Board recognizes that the Veteran is competent to report on what he sees and feels, and others are competent to report on what they can see.  See Layno v. Brown, 6 Vet. App. 465, 471 (1994).  Nonetheless, the Board finds more persuasive the opinions provided by the VA examiners regarding the severity of the Veteran's disability, as the VA opinions are based on a review of the evidence and the Veteran's assertions, and because of the examiners' expertise.

For all the foregoing reasons, the Board finds that a rating higher than 40 percent for low back syndrome with spondylolysis and spina bifida is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5237 (2012).  This is so for the entirety of the appellate period.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for increase, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

New and material evidence to reopen a claim of service connection for atrial fibrillation has been received; to this limited extent, the appeal of this issue is granted.

Entitlement to service connection for sterility is denied.

Entitlement to a rating higher than 40 percent for service-connected low back syndrome with spondylolysis and spina bifida is denied.


REMAND

In light of the Board's conclusion that the claim for entitlement to service connection for atrial fibrillation is reopened, the claim must be considered on a de novo basis.  The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the claim.

As noted above, the VCAA  was enacted in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2012).  The Court has held that this includes disabilities aggravated or made chronically worse by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Regarding the Veteran's service connection claim, the Board acknowledges that the Veteran contends that he has atrial fibrillation that is related to service or, in the alternative, to his service-connected back disorder or the medications used to treat that disorder.  Service treatment records are silent as to any complaints of or treatment for heart problems, although the Veteran was treated with Darvon for his low back problems during service.  Post-service treatment records reflect a diagnosis of atrial fibrillation at least as early as 1991.  The Veteran underwent VA examination in October 2010; at that time, he was diagnosed with atrial fibrillation, and the examiner opined that the disorder is less likely than not related to service.  However, the examiner did not offer any rationale for the opinion, and no opinion was provided as to whether the Veteran's service-connected low back disorder, or the medications used to treat it, caused or aggravated the atrial fibrillation.  In addition, the Veteran has submitted documents from the FDA addressing the possibility of an etiological link between the medication Darvon and heart disorders such as atrial fibrillation.  

Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").

Although the October 2010 VA examiner conducted adequate evaluation of the Veteran's physical condition at the time, the Board notes that the VA examiner did not provide a rationale for his opinion regarding a direct relationship between the Veteran's atrial fibrillation and service.  In addition, the examiner did not discuss whether the Veteran's atrial fibrillation has been caused or made worse by his service-connected low back syndrome with spondylolysis and spina bifida, or to the medications used to treat the disorder.  Thus, the VA medical opinion obtained to date is inadequate.  See 38 C.F.R. § 4.2 (2012) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions).  Accordingly, remand is required.

In light of the above considerations, the Board concludes that another medical examination and opinion are needed.  Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claim of service connection for atrial fibrillation, including as secondary to service-connected low back syndrome with spondylolysis and spina bifida.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (holding that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).  Specifically, the agency of original jurisdiction (AOJ) must arrange for the Veteran to undergo VA examination by a qualified professional, who must review the Veteran's claims file and his assertions and offer a well-reasoned opinion as to whether the Veteran's current atrial fibrillation is directly etiologically linked to his time in service.  In addition, the examiner must offer a well-reasoned opinion as to whether atrial fibrillation has been caused or made chronically worse by the Veteran's service-connected low back syndrome with spondylolysis and spina bifida or the medications-including Darvon-used to treat that disorder.  The reviewer must clearly identify the medical evidence or principles upon which he or she bases any opinions.  A full explanation must be provided for all conclusions.  The documents submitted by the Veteran concerning a link between Darvon and heart disorders, as discussed above, must be thoroughly discussed in the context of any negative opinion.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this case, the Veteran has stated on multiple occasions, including at his December 2012 hearing before the undersigned Veterans Law Judge, that he is no longer able to work due to his service-connected low back syndrome with spondylolysis and spina bifida.  The Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice.

However, the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for a TDIU.  If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  The Board therefore must remand the case to the AOJ because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so.

Further, the Board notes that the RO has not addressed the issue of whether the Veteran is unemployable due solely to service-connected disabilities.  Therefore, the question of whether the Veteran is entitled to a TDIU must be returned to the AOJ for adjudication.  In particular, on remand the AOJ must obtain a medical opinion addressing the effect of all of the Veteran's service-connected disabilities, when considered together, on the Veteran's unemployability.  Accordingly, on remand, an opinion regarding the effect of all of the disabilities together on employability must be obtained.  That opinion must consider this specific Veteran's educational and occupational experience.  See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).

With regard to the issue of whether CUE was committed in a September 1971 decision that assigned an initial noncompensable disability rating for low back disability and a December 1971 rating decision that denied an increased rating for low back disability, the Board notes that in an October 2009 statement that has been included in the claims file, the Veteran expressed disagreement with the September 2009 rating decision in which his claim of CUE in the 1971 decisions was denied.  The Board finds that the October 2009 statement represents a timely notice of disagreement as to the September 2009 decision.  See 38 C.F.R. § 20.201 (2012).  However, the RO has not issued a statement of the case on these issues, and as a result no appeal has been perfected. 

The United States Court of Appeals for Veterans Claims has held that where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case  Manlincon v. West, 12 Vet. App. 238 (1999).

In view of the foregoing, the case is REMANDED for the following action:

1. The Veteran must be sent a letter requesting that he provide sufficient information and, if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record.  The AOJ must explain the type of evidence VA will attempt to obtain as well as the type of evidence that is the Veteran's ultimate responsibility to submit.  The letter must particularly notify the Veteran of the information and evidence necessary to substantiate a service connection claim on the basis of secondary service connection, as well as claim of entitlement to a TDIU rating.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

2.  After associating with the claims file any records and/or responses received pursuant to the above-requested development, the Veteran must be scheduled for VA examinations and notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims.  See 38 C.F.R. § 3.655(b) (2012).

Atrial Fibrillation-The VA examination is necessary to determine the etiology of any current atrial fibrillation found to be present.  The VA examiner must review the Veteran's claims file and medical history, examine the Veteran, and provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's currently diagnosed atrial fibrillation is directly traceable to his period of military service.  The examiner must also provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed atrial fibrillation has been caused or made chronically worse by the Veteran's service-connected low back disorder, or by the medications, such as Darvon, prescribed to treat that disorder.  The documents submitted by the Veteran concerning a link between Darvon and heart disorders must be thoroughly discussed in the context of any negative opinion.

The examiner must thoroughly review the Veteran's claims file, to include a copy of this remand.  A well reasoned opinion must be provided with a detailed explanation for all conclusions reached by the reviewer.  Citations to the record or relevant medical principles should be included as necessary to explain the opinion, and a complete rationale must be given for all opinions and conclusions expressed.

TDIU-The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history.  Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders.  A full explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a full explanation provided for that conclusion.

The Board notes that the opinion regarding the Veteran's employability must be provided based on the effects of the Veteran's service-connected disabilities together, not based on the effects of each disability singularly.  The Veteran's service-connected disabilities are as follows: low back syndrome with spondylolysis and spina bifida and adjustment disorder.  

3.  The AOJ must ensure that the examination reports comply with this remand and the questions presented in the examination request.  If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.

4.  After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority.  If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

5.  The Veteran and his representative must be sent a statement of the case on the issue of whether CUE was committed in a September 1971 decision that assigned an initial noncompensable disability rating for low back disability and a December 1971 rating decision that denied an increased rating for low back disability.  If, and only if, the Veteran perfects an appeal by submitting a timely substantive appeal with respect to this claim, the case should be returned to the Board.
 
By this remand, the Board intimates no opinion as to any final outcome warranted.  The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


(CONTINUED ON NEXT PAGE)


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs