Citation Nr: 1313481	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  10-44 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina



THE ISSUES

1.  Entitlement to a compensable rating for the service-connected residuals of the fractured transverse process at L4.

2.  Entitlement to an increased rating for the service-connected posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling.

3.  Entitlement to a total disability rating based on individual unemployability by reasons of service-connected disability (TDIU).



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1974 to June 1978.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2009 and December 2009 by the RO.

The Board notes that the April 2009 rating decision was a reconsideration of a November 2008 rating decision granting service connection for PTSD evaluated at 50 percent disabling, effective on May 5, 2008.

In December 2008, the Veteran identified private treatment records that had not been previously considered.  The additional evidence was received within one year of the November 2008 rating decision, which required reconsideration of the issue in the April 2009 rating decision. 

As to representation, the Veteran was previously represented by the North Carolina Division of Veterans Affairs.  This representation was withdrawn in a letter dated in November 2010.

The Veteran also has raised a claim for a TDIU rating in his January 2010 Notice of Disagreement.  Entitlement to a TDIU rating was adjudicated in an October 2010 Statement of the Case.

The issue of a TDIU is closely related to the claim for a higher rating for the service-connected PTSD, and as a result, the Board accepts jurisdiction over the matter.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU rating will be considered part and parcel of the claim for benefits for the underlying disability).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of an increased rating for the service-connected PTSD and based on a TDIU rating are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The service-connected residuals of the fractured transverse process at L4 is shown to be manifested by complaints of pain and decreased range of motion and productive of a disability picture that more nearly approximates that of forward flexion of the thoracolumbar spine limited to less than 85 degrees but more than 60 degrees.  


CONCLUSION OF LAW

The criteria for the assignment of a rating of 10 percent, but no more for the service-connected residuals of the fractured transverse process at L4 have been met.  38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R.§§ 4.3, 4.7, 4.130 including Diagnostic Code 5237 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

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.  38 C.F.R. § 3.159(b)(1).

A June 2009 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating for residuals of a fractured transverse process at L4.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the June 2009 VCAA notice letter was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.  The VA treatment records and private treatment records have been associated with the claims folder.  Additionally, VA afforded the Veteran an examination in July 2009.  

The Board notes that this VA examinations is adequate as it reflects a pertinent medical history, review of the documented medical history, clinical findings, and reasoned explanations for the opinions provided at the examinations.

The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the Veteran, and there is no other specific evidence to advise him to obtain.


II.  Law and Regulation

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  Id.  

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.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In evaluating the severity of a particular disability it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, staged ratings are not warranted.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  

When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

The Veteran is currently assigned a noncompensable evaluation for the service-connected residuals of a fractured transverse process at L4 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.

The regulations provide a General Rating Formula for Disease and Injuries of the Spine that is applicable to Coded 5235 to 5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:

A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine.

A 40 percent evaluation will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. 

Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 cervical spine is 340 degrees and 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 (4): Round each range of motion measurement to the nearest five degrees. 

Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  See Butts v. Brown, 5 Vet. App. 532 (1993).


III.  Analysis

The Veteran contends that he is entitled to a compensable rating for the service-connected residuals of the fractured transverse process at L4.

The service treatment records show that the Veteran injured his back in an accident in August 1976 when a truck overturned when responding to an aircraft crash.  

Service connection for the residuals of the fractured transverse process was established in June 1980, and the RO assigned a 10 percent disability rating under Diagnostic Code 5299-5284, effective beginning on December 18, 1979.  

In a February 1982 rating decision, the RO reduced the evaluation to no percent effective on May 1, 1982.

In a March 1982 rating decision, the RO determined that adequate notification was not sent to the Veteran regarding the reduction.  The RO made the reduction effective on June 1, 1982.  

The Veteran appealed the reduction to the Board.  In a February 1983 decision, the Board denied the appeal.  

The Veteran filed a claim seeking a higher disability rating for his service-connected back disability in June 2009.

A July 2009 letter from the Veteran's chiropractor noted that he received periodic treatment for chronic lumbar facet syndrome. 

The Veteran was afforded a VA examination in July 2009.  The examination noted that the there were no residuals of the service-connected fractured L4 transverse process.  The examiner indicated that X-ray studies showed no current diagnosis of a fractured transverse process.

On examination, the Veteran reported having stiffness, fatigue, spasms, decreased motion, paresthesia and numbness associated with the service-connected back disability.  He also reported having weakness in the spine and leg.  

The examination revealed that the Veteran's posture and gait were within normal limits.  Straight leg testing was positive on the right and negative on the left.  There was no atrophy or ankylosis.  Joint function of the spine was limited by pain after repetitive use.  It was not additionally limited by fatigue, weakness, lack of endurance or incoordination.  There was symmetry of spinal motion with normal curves of the spine.

The range of motion testing showed that the Veteran had 60 degrees of flexion, 20 degrees of extension, right and left lateral flexion to 20 degrees, and right and left rotation to 20 degrees.

The July 2009 VA examiner diagnosed chronic lumbar strain.  However, he noted this was a new and separate diagnosis.  The examiner noted the Veteran had pain with decreased range of motion attributed to the new diagnosis.  

The lumbar spine X-ray studies were initially noted to have been within normal limits, but were found to show minimal lipping but no rotation, scoliosis or spondylolisthesis on further review.  Minor degenerative changes appeared in the posterior element without disc space narrowing or compression factures.  

The examiner noted these findings were incidental and not related to the Veteran's claim.  The examiner stated that the service-connected disability was not limiting with respect to the Veteran's usual occupation and daily activity.

In considering the evidence of record, the Board finds that the service-connected disability picture more closely resembles that of flexion limited to less than 85 degrees, but not less than 60 degrees.  The recorded findings in the Board's opinion show a current level of impairment manifested by a functional loss due to pain that cannot be differentiated from that attributable to the service-connected injuries involving the lumbar spine.   

The Board has considered the effects of functional loss due to pain or weakness in this case.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Veteran's lay assertions of experiencing pain and decreased motion are found to be credible.  

To the extent that the Veteran's current back symptoms have been attributed a new and separate diagnosis of chronic lumbar strain, the demonstrated X-ray findings cannot be dissociated from changes that might be due to the service-connected vertebral body fracture.  However, given the minimal or minor nature of these findings, a rating higher than 10 percent is not for application in this case.  

The Board has also considered whether a higher rating may be granted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes.  

There is lay evidence that the Veteran has experience of incapacitating episodes with prescribed bedrest by his chiropractor.  However, the medical evidence does not show that the service-connected low back disability itself is characterized by incapacitating episodes.  

Indeed, the July 2009 VA examiner stated there was no intervertebral disc syndrome.  Therefore, a compensable disability rating is not warranted based upon intervertebral disc syndrome or incapacitating episodes.

In view of the Court's holding in Hart, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected disability, as the Court has indicated can be assigned in this type of case.  However, upon review of the record, at no time during the period of appeal has the service-connected disability been more disabling.

The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration in rating the Veteran's residuals fractured transverse process at L4.

The governing norm in such exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b).  

As the Veteran has no significant findings that can be identified as being residuals of a fractured transverse process at L4, there is no basis for referring this issue for extraschedular consideration.  See  38 C.F.R. 3.321(b)(1).  

Accordingly, on this record, an increased rating of 10 percent, but no more for the service-connected residuals fractured transverse process at L4 is warranted.


ORDER

An increased evaluation of 10 percent, but not higher for the service-connected residuals of a fractured transverse process at L4 is granted, subject to the regulations controlling disbursement of VA  monetary benefits.


REMAND

The Board finds that the RO must provide additional assistance to the Veteran in connection with his claim for an increased rating for the service-connected PTSD.  The VA's duty to assist includes making an effort to gather records of VA treatment and affording a VA examination.

A private psychologist indicated in a July 2008 treatment record that the Veteran saw a VA psychologist in June 2008, but no VA treatment records are associated with the claims file.

A remand of this case is warranted, so the RO can ensure that all available VA and non-VA treatment records are obtained.  See 38 U.S.C.A. § 5103A(a)-(c);Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered).

The Veteran asserts that his PTSD warrants a higher initial rating.  His most recent VA examination for PTSD was conducted in January 2009.

The Veteran should be afforded a VA examination to assess the current severity of his service-connected PTSD.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95.

Additionally, as discussed in the introduction to this remand, the Board has found the claim for a TDIU rating is part and parcel of the claim for a higher initial rating for the service-connected PTSD.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The RO must seek to obtain any additional records relevant to his unemployability and provide an examination and opinion on the matter of whether the Veteran is unemployable due to service-connected disabilities.  See 38 U.S.C.A. §§ 5103(a)-(b), 5103A(a)-(d).

Accordingly, these remaining matters are REMANDED to the RO for the following action:

1.  The RO should take all indicated action to obtain copies of any outstanding VA records referable to treatment rendered the Veteran for the service-connected PTSD since 2009.

Additionally, the RO should take appropriate action to contact the Veteran in order to have him identify any other sources of medical care for the service-connected PTSD.  Based on his response, copies of all treatment records should be requested from any identified health care provider.

The Veteran should be notified that he may submit medical evidence and treatment records in support of his claim for increase.

2.  After obtaining any records, the RO should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected PTSD.  

The claims folder should be made available to the examiner for review in connection with the examination.   

The examiner should report detailed clinical findings and identify all symptoms and any functional impairment due to the service-connected PTSD.

The examiner should provide a global assessment of functioning (GAF) score for the service-connected PTSD.  

Any opinion expressed by the examiner should be accompanied by a rationale.  

3.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran 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).

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).


______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals


Department of Veterans Affairs