Citation Nr: 1313422 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 06-28 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a separate rating for neurological manifestations of service-connected low back strain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). This case has since been transferred to the Cleveland, Ohio RO. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2008. A transcript of that hearing has been associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the February 2008 hearing, the undersigned fully explained the issues involved and specifically the increased rating claim for the Veteran's service-connected low back strain which is ancillary to the issue discussed in this decision. Further, while the undersigned did not specifically suggest the submission of evidence that may have been overlooked, the undersigned asked questions designed to elicit evidence that may have been overlooked or was absent from the record. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. Also, the Board finds there was no prejudice in the conduct of the hearing, as the evidence necessary to determine the level of severity of the service-connected low back strain and any associated neurological impairment is in the claims file and VA has provided the Veteran with the criteria that would establish higher ratings for his disability. Therefore, to any extent that the undersigned did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice that is either shown in the record or alleged by the Veteran or his representative. The claim was also remanded in July 2008 to obtain additional information regarding the increased rating claim based upon the Veteran's testimony, and remanded again in November 2009 and in September 2012 to obtain additional evidence. In a July 2009 rating decision, the Veteran was awarded a 40 percent disability rating for his low back strain, effective January 28, 2009. In an October 2010 statement, the Veteran wrote that he was satisfied with the 40 percent evaluation assigned from January 28, 2009 for his low back strain and no longer wished to pursue the appeal. Thus, this issue is no longer in appellate status. In a June 2011 decision, the Board denied entitlement to a disability rating in excess of 20 percent for low back strain prior to January 28, 2009. The Veteran appealed to the United States Court of Appeals for Veterans Claims which by a February 2012 Order, granted a February 2012 Joint Motion for Remand, vacating the June 2011 decision and remanding the case back to the Board for compliance with the terms of the Joint Motion. Pursuant to the JMR, the case was again before the Board in September 2012. The Board granted a disability rating of 40 percent for low back strain for the period prior to February 23, 2007, and denied the claim for a disability rating in excess of 20 percent for low back strain from February 23, 2007 to January 27, 2009. As noted, also in September 2012, the issue of entitlement to a separate disability rating for neurological manifestations as due to service-connected low back strain was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The case has been returned for review by the Board. FINDING OF FACT The most competent and credible evidence of record indicates that the Veteran does not have separate neurological manifestations claimed as radiculopathy of the lower extremities associated with his service-connected low back strain. CONCLUSION OF LAW The criteria for a separate disability rating for neurological manifestations of service-connected low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5243, the General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Prior to the initial adjudication of the Veteran's claim for an increased rating in the November 2005 rating decision, he was provided notice of the VCAA in July 2005. A subsequent VCAA letter was sent in July 2008. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in July 2008 and June 2009, pertaining to the downstream disability rating and effective date elements of his claim, and subsequent readjudication in June 2009 and August 2010 supplemental statements of the case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's actions are also indicative of his actual knowledge of the requirements for substantiating his increased rating claim. The Veteran reported his current symptoms and the effects on his daily activities and employment to VA examiners and provided testimony in this regard in the February 2008 video conference hearing. Based on this evidence, the Board is satisfied that the Veteran had actual knowledge of what was necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private medical records, VA outpatient treatment reports, adequate VA examinations and opinions as well as statements from the Veteran and his representative. This issue regarding whether there is additional neurological manifestations associated with his low back disability was most recently remanded by the Board in September 2012 to provide the Veteran with additional VA opinion for his claimed disability. The Board notes that the December 2012 VA examination report and opinions reflect that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered an appropriate diagnosis and an opinion consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examination and opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the December 2012 VA examiner complied with the Board's remand instructions and provided an appropriate rationale for her opinion, the Board is satisfied that the development requested by its September 2012 remand has now been satisfactorily completed and substantially complied with respect to his claimed neurological disability. See Stegall v. West, 11 Vet. App. 268 (1998) (where there was substantial compliance with the Board's remand instructions). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regards the claim on appeal. The Veteran must not assume that the Board has overlooked any pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran's service-connected low back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Note (1) of the General Rating Formula indicates that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine. Also under Diagnostic Code 5243, intervertebral disc syndrome or disc disease, may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a. The Veteran alleges that he has neurological symptoms of the lower extremities as a manifestation of his service-connected low back disability. The Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested neurological dysfunction during service or that such is otherwise related to service on a direct basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Thus, the issue of direct service connection need not be addressed. Turning to the merits of the claim, VA outpatient treatment reports from March 2003 to June 2005 reflect that a history of low back pain was noted in March 2004. At an August 2005 VA examination, the Veteran reported pain and stiffness in his lumbar back radiating down to both legs intermittently as well as neck pain. He reported sciatica during flare ups of pain with associated numbness. The numbness was bilateral and ran the length of the leg. The Veteran worked in building maintenance and usually wore a brace at work. He indicated he experienced some unsteadiness and his legs had given out the prior week resulting in stumbling. A physical examination revealed the spine, limbs, posture, gait, position of the head, curvature of the spine, and symmetry of spinal motion were all within normal limits. The examiner noted that the range of motion of the thoracolumbar spine was quite limited and the Veteran attributed this limitation to pain. Forward flexion was measured as being from 0 to 25 degrees. The examiner reported the Veteran expressed a great amount of tenderness in all directions in the range of motion. The examiner noted that the cervical and thoracolumbar ranges of motion were disproportionately limited when compared with observed ranges of motion the Veteran exhibited during ambulation, dressing, reaching for a soda and other motions observed during the course of the examination. A neurological examination was normal with the exception that deep tendon reflexes could not be elicited at either the patella or the Achilles tendons. Positive Waddell signs were noted. Lasegue's sign was positive on the left side only. The Veteran was diagnosed with low back strain with functional overlay. There had been no episodes of incapacitation in the past year. VA X-rays of the thoracic spine in October 2005 revealed mild degenerative changes of the thoracic spine. The October 2005 magnetic resonance imaging (MRI) report revealed mild cervical spondylosis, small right L4-L5 paracentral disc protrusion contacting the right L5 emerging nerve root and mild L5 disc bulge. Based on the October 2005 MRI report, the VA examiner furnished an addendum opinion to her previous diagnosis in October 2005. She noted that the previous diagnosis should be disregarded and replaced with the following diagnoses: degenerative disc disease of the cervical and lumbar spine; small right L4-L5 paracentral disc protrusion contacting the right L5 emerging nerve root; and mild L5-S1 disc bulge. She also found that these studies showed diffuse degenerative disc disease throughout the spine and that this level of disease was at least as likely as not to account for the Veteran's symptoms. A July 2006 private medical record reflects that the Veteran sought treatment for neck pain and stiffness with radiation to the upper extremities. There was no mention of problems with the low back. In a February 2007 private medical record, the Veteran sought treatment from a private health care provider reporting he had a few weeks history of low back pain. He was working two jobs which included mopping and some lifting. There was no known injury and no radiation of pain to the legs. It hurt to twist the body. There was no dysuria. There was a full range of motion of the back. The assessment was strain of the back. In a February 2008 video conference hearing, the Veteran testified that he rated his daily pain as being eight out of 10 in severity, which would radiate down both legs, left more than right. He identified numbness and tingling going down the leg. He reported that he had to avoid stairs if possible and that he did not do any yard work. The Veteran stated that he used to play basketball but he did not anymore due to pain. He was employed as a housekeeper at a local college and had been employed there for nine years and his job entailed bending, some lifting and operating a buffer machine. The Veteran testified that, the prior year, he had to use all of his annual leave and sick leave due to back pain. He reported he was reprimanded at work. The Veteran denied being able to touch his toes or bend 90 degrees at the waist. He denied being able to bend backward. In a February 2008 VA outpatient treatment report, the Veteran sought treatment for low back stiffness and soreness which was worsening. Ibuprofen didn't help. He wore a brace occasionally such as when lifting. The pain was reportedly in the left lumbar/sacral area and radiated down the outside and back of the left leg to his toes. A physical examination revealed a full range of motion of the lumbar spine. The lumbar spine was found to be tender to percussion. The Veteran was assessed with degenerative disc disease. At a January 2010 VA examination of the spine, the examiner furnished an opinion regarding whether any neurological deficits were related to the spine. The examiner found that the Veteran's MRI did show some neurological deficits with L5 radiculopathy; however, he found that, to state that this was related to the back injury in service in the military would be pure speculation. In the February 2012 Joint Motion for Remand, the parties agreed that the Board failed to ensure the duty to assist had been satisfied. 38 C.F.R. § 4.2. Specifically, the Joint Motion pointed out the Board's finding that the evidence did not warrant a separate evaluation for neurological manifestations was based on a reliance upon a January 2010 VA examination report, in which the VA examiner provided no explanation for his opinion that to state that the neurological deficits with L5 radiculopathy were related to the back injury in the military would be pure speculation. Therefore, the Joint Motion noted that because the VA examiner did not explain why the neurological deficits with L5 radiculopathy were related to the back injury in the military would require speculation, it was incumbent upon the Board to seek clarification, and failure to do so required a remand. See Jones v. Shinseki, 23 Vet. App. 382,390 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As directed by a September 2012 Remand, the Veteran underwent a VA examination in December 2012 to assess the etiology of his reported neurological deficits of the lower extremities. The claims file was reviewed by the examiner in conjunction with performing the examination. The Veteran reported significant low back pain and resulting debility. He reported that his granddaughter had to assist him in tying his shoes. His grandson had to operate the snow blower and lawn mower because of his back disability. The examiner noted that the Veteran wore a clean, new appearing back brace. Further, he had to sit down to remove his shirt due to back pain. On examination there was symmetric and normally developed musculature of the back and extremities. There was positive tenderness of the paravertebral spine with palpation. On all observed movement, there was pain and grimacing involving the left lumbar spine and left upper extremity, but not when unobserved. He also showed 5/5 power with all muscles of the upper and lower extremities while unobserved, but under observation his strength was reduced to 3-4/5 in most muscle groups. He was able to walk on his heels and toes. He had normal sensation to vibration, temperature, and nonmonofilament to the upper extremities. In regard to the lower extremities, there was diminished sensation to light touch only to the left second toe as well as diminished sensation to only vibration to the left great toe. The examiner reported that the Veteran had a known history of lumbar DDD, as documented on the 2005 MRI. There was a small right L4-L5 paracentral disc protrusion contacting the right L5 emerging nerve root, as well as, a mild L5-S1 disc bulge. She indicated that although occasional back pain radiated into the extremities, he did not have a history of sciatica. She pointed out that there was no history of radiculopathy. Plus, there was insufficient evidence of radiculopathy on examination. The physician found that electromyographic testing was not indicated based on past [radiological] imaging and examination. She further noted that neither arthritis nor back strain constituted a neurological manifestation of degenerative disc disease. The internist explained that the term sciatica refers to pain that radiates along the path of the sciatic nerve. However, such pain can have a variety of causes and it is not necessarily synonymous with radiculopathy. The examiner concluded that the Veteran did not have any neurological deficit of the lower extremities, let alone associated with the service-connected low back strain. In providing her rationale, she noted that in regard to past examinations, the most debilitating symptom the Veteran complained of was left lumbar pain. However, his neurologic examination was not consistent with radiculopathy. While his mild disc protrusions may or may not be symptomatic, she found that there was insufficient evidence to conclude that the Veteran's signs and symptoms result from his disc bulge. She stated that there was also no evidence that the Veteran's disc disease was related to service and there was no evidence that arthritis represented an aggravation of the Veteran's service-connected lumbar strain. The examiner stated further, that the Veteran began smoking at age 13 and stopped at age 56; thus, for over 40 years this nicotine exposure reduced the Veteran's spinal circulation by 70 percent, prevented repair of microtrauma in his spine, and was therefore, the most probable source of the Veteran's degenerative disc disease. In addition, the examiner reported that the Veteran had had at least two other known injuries not related to service. Therefore, the examiner concluded that it was less likely as not that the Veteran's current degenerative disc disease had any relationship to the Veteran's service-connected lumbar strain which generally does not cause degenerative disc disease. Finally, she concluded that as no neurological deficit was demonstrated on examination, there was thus no etiological relationship between the Veteran's service-connected low back strain and such a deficit. Based on the foregoing, the Board finds that a separate rating is not warranted for a neurological abnormality associated with the Veteran's service-connected low back strain. In this regard, the medical evidence includes the Veteran's reports of neurological manifestations. However, as discussed further below, the medical evidence of record does not indicate that the Veteran has radiculopathy of the lower extremity or a neurological disability that is attributable to his low back disability. Thus, a separate rating is not warranted in this case. The Board notes that competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). As the December 2012 VA examiner is so qualified, the medical opinion constitutes competent medical evidence. The Board further finds that the VA examiner's medical findings are credible, based on their internal consistency and the VA examiner's duty to offer truthful opinions. Moreover, the examiner offered clear conclusions with supporting rationale as well as reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). She took into consideration the Veteran's statements, the past medical history, and the theories presented, but still found that his reported symptomatology did not present a true disability picture involving radiculopathy. Consequently, the Board assigns great probative value to the VA examiner's report. There is no medical opinion to the contrary of record. The Board notes that the Veteran has asserted that he has neurological manifestations related to his service-connected low back strain. In the instant case, the Board finds that the question of whether the Veteran has a neurological condition or one that is related to his service-connected low back disability is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, determining the neurologic manifestations of such disorder requires special diagnostic testing and the interpretation of such test results. There is no indication that the Veteran possesses the requisite skill or knowledge necessary to administer or interpret these tests. Consequently, the Veteran is not competent to provide an etiological opinion as to that question. Therefore, the Board finds that a separate disability rating for neurological manifestations of the service-connected low back disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 510; 38 C.F.R. § 3.102; Gilbert, supra and Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER Entitlement to a separate rating for neurological manifestations of service-connected low back strain is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs