Citation Nr: 1314445	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  09-10 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for an acquired psychiatric disability (claimed as posttraumatic stress disorder (PTSD).  

3.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a left knee disorder.

4.  Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine under 38 U.S.C.A. § 1151.

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


REPRESENTATION

Veteran represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1977 to October 1981 and from October 1988 to December 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In September 2008, the RO denied service connection for hypertension and PTSD.  In July 2010, the RO granted compensation under 38 U.S.C.A. § 1151 for degenerative disc disease of the lumbar spine, assigned at 20 percent disabling effective December 3, 2009, and denied compensation under 38 U.S.C.A. § 1151 for a left knee disorder.

In the September 2008 rating decision, the RO also denied service connection for ulcers.  The Veteran only perfected an appeal, in a March 2009 VA Form 9 for the issues of service connection for hypertension and PTSD.  See 38 C.F.R. § 20.200 (2012).

In March 2009 and July 2011 substantive appeals, via a VA Form 9, the Veteran requested a personal hearing before the Board at the RO and a video conference hearing before the Board, respectively.  In a September 2011 form letter, the Veteran withdrew his Board hearing request and requested a hearing with a Decision Review Officer (DRO) at the local RO.  In May 2012, the Veteran testified before a DRO and a copy of the transcript is of record.  The Board finds there is no Board hearing request pending at this time.  38 C.F.R. § 20.702(e) (2012). 

During the course of the appeal, the evidentiary development has resulted in evidence showing psychiatric diagnoses of depression and depressive disorder not otherwise specified (NOS).  In light of the evidence of record and the decision in Clemmons v. Shinseki, 23 Vet. App. 1 (2009), the Board has characterized the issue, formerly claimed as PTSD, as service connection for an acquired psychiatric disability.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

The issues of service connection for an acquired psychiatric disability and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  In a May 2012 statement, via a VA Form 21-4138, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appellate status the issue of service connection for hypertension.  

2.  The Veteran does not currently have a left knee disorder.

3.  For the entire initial rating period on appeal, the service-connected degenerative disc disease of the lumbar spine more closely approximate manifestations of at worst limited forward flexion to 50 degrees, functional impairment, and guarding or muscle spasm severe enough to result in abnormal spinal contour.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal by the Veteran with regard to the issue of service connection for hypertension have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200-20.202, 20.204 (2012).

2.  The criteria for compensation under 38 U.S.C.A. § 1151 for a left knee disorder have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012).  

3.  The criteria for an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5237 (2012).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by November 2007 and January 2010 letters.  In these letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  The Veteran was also informed in the January 2010 letter of the evidence needed to substantiate a claim for compensation under 38 U.S.C.A. § 1151.

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the November 2007 and January 2010 letters included the type of evidence necessary to establish a disability rating and effective date.

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claims on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, personal statements, May 2012 DRO hearing transcript, and VA examination reports dated May 2010 and July 2012.  The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Withdrawal of Service Connection for Hypertension

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b) (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c).

In a May 2012 statement, via a VA Form 21-4138, the Veteran withdrew from consideration the issue of service connection for hypertension.  As the Veteran has withdrawn his appeal as to the stated issue, there remains no allegation of errors of fact or law for appellate consideration (there is no dispute).  Accordingly, the Board does not have jurisdiction to review the appeal on the issue, and it is dismissed without prejudice.

Compensation under 38 U.S.C.A. § 1151 for a Left Knee Disorder

In a December 2007 VA Form 21-4138, the Veteran requested compensation under 38 U.S.C.A. § 1151 for an accident that happened on August 4, 2008 or August 5, 2008 during compensated work therapy (CWT) at the VA Medical Center (VAMC) in Dallas, Texas.  He reported hurting the lower back and left knee by pushing a heavy cart up a ramp.  At the May 2012 DRO hearing, the Veteran affirmed that his left knee problem came about at the same time as his back injury in which he was pushing a heavy patient up a hill during CWT at the Dallas VAMC.  He also reported experiencing shooting pain down to the left knee and that nerve impairment causes problem for the left leg.  

At the outset, the Board notes that in the July 2010 rating decision, the RO granted compensation for degenerative disc disease of the lumbar spine under 38 U.S.C.A. § 1151.  In an October 2012 rating decision, a DRO also granted service connection for radiculopathy of the left lower extremity as secondary to the service-connected degenerative disc disease of the lumbar spine disability, assigned at 10 percent disabling, effective July 13, 2012.  

Under 38 U.S.C.A. § 1151, compensation is awarded for a "qualifying additional disability" in the same manner as if such additional disability or death were service connected.  To be considered a "qualifying additional disability," in these circumstances, a disability must meet two criteria.  First, it must not be the result of the Veteran's willful misconduct.  38 U.S.C.A. § 1151(a).  Second, the disability must have been proximately caused by participation by participation in a CWT program.  38 U.S.C.A. § 1151(a)(2)(B).

To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the CWT program upon which the claim is based to the Veteran's condition after such program has stopped.  38 C.F.R. § 3.361(b).  VA considers each involved body part or system separately.  Id.

To establish that a CWT program proximately caused a veteran's additional disability, it must be shown that the veteran's participation in an essential activity or function of the CWT program proximately caused the disability or death.  The veteran must have been participating in such CWT program provided or authorized by VA as part of a CWT program under 38 U.S.C.§ 1718.  It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. 3 8 C.F.R. § 3.361(d)(3).  


The preponderance of the evidence is against a finding that the additional disability element has been met in this case.  The most probative evidence in this regard is the May 2010 VA joints examination report.  The Veteran informed the VA examiner of pain radiating into the left leg originating in the lumbar spine that stops at the level of the left knee and he has been told that his left knee and leg pain are originating from his lumbar spine.  The examiner noted the Veteran has no intrinsic problems with the left knee as it, in and of itself, does not cause any flare-ups or affect his activities of daily living, job, standing, or walking.  The Veteran is not specifically treated or uses a brace for the left knee; however, ambulates with the aid of a cane due to the lumbar spine with radicular symptoms.

On VA examination of the left knee, the Veteran exhibited full range of motion without pain, full strength, and stability to varus and valgus stress.  There were no findings of swelling, crepitus, or functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination on repetitive motion testing.  The following test results were also negative: McMurray's, Lachman's, anterior drawer, and posterior drawer.  The examiner concluded the left knee examination was normal with no intrinsic pathology found, and the Veteran's left knee complaints are related to radicular symptoms from the lumbar spine into the left leg to the level of the knee.

Review of the Veteran's VA outpatient treatment are also silent as to findings of an additional disability of the left knee.  Specifically, an April 2008 record documents complaint of low back pain after pushing an overweight patient up the hill in front of the hospital, and there was no mention with regard to the left knee.

The Board acknowledges the Veteran is competent to report symptoms he experiences and observes at any time regarding the left knee because this requires personal knowledge as it comes through the use of his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  He is not, however, competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a left knee disorder.  See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  

For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against a finding that the additional disability element of a 38 U.S.C.A. § 1151 claim has been met, thus the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Service-Connected Degenerative Disc Disease of the Lumbar Spine

In a July 2011 substantive appeal, via a VA Form 9, the Veteran asserts that his service-connected disability has worsened and should be rated higher.  At the May 2012 DRO hearing, he reiterated that his back disability has gotten worse.  He also reported being treated for the back on a recurring basis at the Dallas VAMC, takes prescribed pain medication, receives steroid injections every six months, and uses a cane, TENS unit, back brace, and lubricants.  The disability is worse in the morning and he has difficulties with bending forward and to the left side, from which the later he experiences sharp pain to the knee.  

Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity.  See U.S.C.A. § 1155 (West 2002).  Separate diagnostic codes identify the various disabilities.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

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.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  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.  Id.  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 or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  38 C.F.R. § 4.59.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Pursuant to the rating criteria for the spine, the Veteran's service-connected degenerative disc disease of the lumbar spine is rated at 20 percent disabling for the entire initial rating period on appeal for limitation of motion, functional impairment, and guarding of motion resulting in loss of normal lordosis.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237 (2012).  

Arthritis due to trauma is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).  Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved.  Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint (including the ankle and the knee) or group of minor joints affected by limitation of motion to be combined not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).

When evaluating all lumbar spine disabilities, to include limitation of motion, the rating agency shall use a general rating formula for diseases and injuries of the spine, unless the disability is rated under the formula for rating intervertebral disc syndrome based on incapacitating episodes (renumbered as Diagnostic Code 5243). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012).  For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires treatment and bed rest prescribed by a physician.  Id. at Note (1).

The rating criteria, in pertinent part, provides a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  Id.  Again, these ratings are made 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.  Id. 

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.  Id. at Note (2).  The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation.  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.  Id.

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine for any period under Diagnostic Codes 5010-5237.  

At the May 2010 VA joints examination, the examiner noted the Veteran's ongoing treatment for the lumbar spine to include physical therapy, TENS unit, medication, bio-freeze gel, wraparound velcro and neoprene lumbar support, and use of a cane.  Upon clinical evaluation, the Veteran exhibited limited forward flexion of the thoracolumbar spine to 80 degrees.  His gait was normal but slow with the aid of a cane and the spine maintained its normal architecture.

At the July 2012 VA Disability Benefits Questionnaire (DBQ) examination for the back, the Veteran exhibited limited forward flexion of the thoracolumbar spine to 50 degrees.  The examiner also noted the Veteran constantly uses a cane in the left hand as an assistive device for support due to low back impairment.  The Veteran also has guarding or muscle spasm of the thoracolumbar spine severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.

On physical examination at an April 2008 VA outpatient treatment session, review of the Veteran's musculoskeletal system showed, in pertinent part, normal gait and spine without deformity.  Additionally, an October 2010 VA outpatient treatment record noted the Veteran's use of a cane for assistance with walking bilaterally, lumbar range of motion was full with mild discomfort across the low back, and gait was characterized as mildly antalgic without cane.

Thus, as discussed above, the evidence of record indicates the service-connected disability more closely approximates a manifestation of at worst limited forward flexion to 50 degrees, functional impairment, and guarding or muscle spasm severe enough to result in abnormal spinal contour, and a higher rating under Diagnostic Codes 5010-5237 is not warranted in this case.  

A separate evaluation based on the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes under Diagnostic Code 5243 is not warranted.  See 38 C.F.R. § 4.71a.  The May 2010 VA examiner noted the Veteran has flare-ups on a daily basis that cause him to stop and seek self-imposed bed rest for 30 minutes to one hour.  While the July 2012 VA examiner noted "yes" the Veteran has IVDS of the thoracolumbar spine, it was further noted that the Veteran has not had any incapacitating episodes over the past 12 months due to IVDS.  Moreover, neither the VA outpatient treatment records, the Veteran, or his representative suggest the existence of incapacitating episodes that require treatment and bed rest prescribed by a physician due to the service-connected degenerative disc disease of the lumbar spine.  

A separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1) (2012).  In this case, as noted above, the RO granted service connection in an October 2012 rating decision for radiculopathy of the left lower extremity as secondary to the service-connected degenerative disc disease of the lumbar spine, assigned at 10 percent disabling effective July 13, 2012.  

The Board also notes that the preponderance of the evidence of record does not warrant a separate evaluation for any other associated objective neurological abnormality due to the service-connected disability.  The Board acknowledges that VA outpatient treatment records demonstrate the Veteran's complaints of radiating symptoms down the right leg and thigh in April 2010, August 2010, and October 2010, and the August 2010 record noted that pin prick testing was normal except decreased right lower extremity as compared with the left lower extremity.  However, the May 2010 VA examination report documents results from the straight leg raise sitting and supine tests were negative.  Moreover, the July 2012 VA examiner noted the Veteran does not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, and, with regard to the right lower extremity, straight leg raising test results were negative, test results were normal for muscle strength, reflex, and sensory, and there were no findings of constant or intermittent pain, paresthesias, dysesthesias, or numbness, or muscle atrophy.

The Board also acknowledges the Veteran's complaint and diagnosis of erectile dysfunction in February 2009, April 2010, and September 2010 VA outpatient treatment records.  nonetheless, the evidentiary record does not suggest this dysfunction may be related to the service-connected lumbar spine disability.  In addition, VA outpatient treatment records note that review of systems showed no bowel or bladder incontinence in November 2008, August 2010, and October 2010 and the May 2010 VA examiner noted the Veteran has no bowel or bladder changes or urinary or fecal incontinence.  

The Board further acknowledges the degree of functional impairment due to the service-connected degenerative disc disease of the lumbar spine.  At the May 2010 VA examination, the Veteran exhibited forward flexion of the thoracolumbar spine with pain at 80 degrees.  Upon repetitive motion testing, the examiner noted the Veteran complained of increased pain, but does not exhibit any functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination.  The Veteran reported he can walk up to 10 minutes and stand for a limited, unspecified, amount of time.  He occasionally requires assistance with putting on socks and shoes, uses rails in the shower, has difficulty with heavy lifting and climbing into attics and crawl spaces, and cannot do things such as yard work.  The Veteran complains of painful clicking and popping in the lumbar spine, has had feelings of unsteadiness, and coughing and sneezing increases the back pain.   

At the July 2012 VA DBQ examination, the Veteran reported, in pertinent part, increased low back pain, stiffness and decreased range of motion.  The examiner noted the Veteran did not report that flare-ups impact the function of the thoracolumbar spine.  On examination, he exhibited objective evidence of painful motion of the thoracolumbar spine beginning at 30 degrees with forward flexion and at 5 degrees with extension, bilateral lateral flexion, and bilateral lateral rotation.  The Veteran was able to complete repetitive-use testing with three repetitions with no findings of additional limitation of range of motion of the thoracolumbar spine.  

Following the July 2012 VA clinical evaluation and review of the claims file, the examiner made the following conclusions.  The Veteran does not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine.  The Veteran does have functional loss and/or functional impairment of the thoracolumbar spine, to include less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing.  Lastly, there is no functional impairment of an extremity such that effective function remains other than that which would be equally well served by an amputation with prosthesis. 

Moreover, VA outpatient treatment records show the Veteran's complaints of low back pain, refill for prescribed pain medications, lumbar range of motion in August 2010 was moderately restricted in flexion due to pain, and the Veteran received lumbar epidural steroid injections in February 2009 and August 2010.  

Based on the findings noted above, the Board finds that the evidence of record does not support a higher disability rating on the basis of greater functional loss due to the service-connected lumbar spine disability than that already contemplated by the currently assigned 20 percent disability rating.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-05; VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998).  

The Board has considered the reported history of symptomatology regarding the service-connected disability by the Veteran and acknowledges that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses.  Layno, 6 Vet. App. at 470.  However, the Veteran is not competent to identify a specific level of the disability on appeal according to the appropriate diagnostic codes.  Thus, such competent evidence concerning the nature and extent of this disability has been provided in the medical evidence of record as discussed above and the Board finds these records to be more probative than the Veteran's subjective evidence of complaints and increased symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court.  See Schafrath, 1 Vet. App. at 594.  However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a higher evaluation for any period.

Fully considering the lay and medical evidence for the entire initial rating period on appeal, the reported symptomatology, as discussed above, more closely approximates a manifestation of at worst limited forward flexion to 50 degrees, functional impairment, and guarding or muscle spasm severe enough to result in abnormal spinal contour under Diagnostic Codes 5010-5237 and DeLuca, 8 Vet. App. at 202.  The lay and medical symptomatology does not more closely approximate a manifestation of the rating criteria for the assignment of a higher disability rating, to include a manifestation of limited forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of the entire thoracolumbar spine.  Therefore, the Board finds that a preponderance of the evidence is against an initial disability rating in excess of 20 percent for any period as the Veteran's degenerative disc disease of the lumbar spine.  38 C.F.R. §§ 4.3, 4.7. 

In exceptional cases an extra-schedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

In this case, the Board finds that the symptomatology and impairment of the service-connected degenerative disc disease of the lumbar spine for the entire initial rating period on appeal, as discussed in detail above, are contemplated by the schedular rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237; DeLuca, 8 Vet. App. at 205.  Therefore, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary.  


ORDER

The appeal for service connection for hypertension is dismissed.

Compensation under 38 U.S.C.A. § 1151 for a left knee disorder is denied.

An initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine under 38 U.S.C.A. § 1151 is denied.


REMAND

A remand is required in this case to ensure there is a complete record upon which to decide the issue of service connection for an acquired psychiatric disability and a TDIU.  In this case, the claims file does not include a medical examination or opinion addressing the nature of the Veteran's acquired psychiatric disability and whether it is related to service or development with regard to the claim for a TDIU.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).  

Following separation from service, an April 2008 VA outpatient treatment record noted that PTSD screening test results were positive with a notation that the Veteran meets the criteria for PTSD and needs further assessment; however, no formal diagnosis of PTSD has been established by the evidence of record.  Nevertheless, VA outpatient treatment records document the Veteran's Axis I diagnoses include depression in May 2009 and depressive disorder NOS in April 2010, September 2010, January 2011, and October 2011.  

Concerning the question of in-service disease, injury, or event and whether an acquired psychiatric disorder may be associated with service, the Veteran reported in a December 2007 Statement in Support of Claim for Service Connection for PTSD, via a VA Form 21-0781, three incidents while aboard the U.S.S. Eisenhower from November 1981 to July 1985.  He witnessed a soldier crack his head open during drills.  He was under a lot of stress with difficulty sleeping due to working night shifts.  Lastly, when the ship went into a storm, his friend Elliot was swept overboard by the waves.  In an additional VA Form 21-0781, the Veteran reported that while aboard the U.S.S. Abraham Lincoln, from September 1989 to February 1992, he had several planes take off and land on the carrier.  On one occasion, after takeoff to head back to the ship, the engine died and the plane hit the ground from which he had to hustle to get out.  Since that incident, the dreams of getting out of the plane continue to appear and he started drinking more to get sleep. 

Additionally, in a December 2007 statement, the Veteran's ex-wife reported her observations of the Veteran's behavioral changes before and after military service.  In another December 2007 statement, D. H. reported her observations of the Veteran's behavior during their personal relationship from 2003 to 2007.  She also noted the Veteran stated that while in Desert Storm he was in a plane that malfunctioned causing the plane to be in total darkness.  The Veteran reiterated in the March 2009 substantive appeal, via a VA Form 9, that his friend was killed while aboard the U.S.S. Eisenhower and the plane incident was while aboard the U.S.S. Abraham Lincoln.

The Board finds this case presents certain medical questions that cannot be answered by the Board and is not addressed by the evidence of record.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Specifically, these questions concern the nature and extent of the Veteran's acquired psychiatric disability and a relationship, if any, between the disorder and active service, to include the in-service events described by the Veteran.  This question should be addressed by the appropriately qualified medical professional.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  As a result, the evidence of record presents an inadequate basis to adjudicate the issue of service connection for an acquired psychiatric disability.  A VA examination with medical nexus opinion would assist in determining the nature and etiology of this claimed disorder on appeal. 

Next, a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

In this case, the May 2010 VA examiner noted the Veteran is currently not working.  At the July 2012 VA examination, the examiner marked "yes" the Veteran's thoracolumbar spine condition impacts his ability to work.  Specifically, functional limitations due to low back impairments include the Veteran can sit for 30 minutes, stand for 15 minutes, ambulate 1/4 mile using walking cane in left hand, lift and carry 25 pounds, bend, squat, kneel once every 5 minutes, and cannot run or jog for exercise.  Moreover, VA outpatient treatment records document the Veteran's unemployment status.  As a result, the issue of a TDIU due to service-connected disabilities has been raised by the record and is properly before the Board, the Board is remanding this matter for any necessary development and adjudication by the RO.  See Rice, 22 Vet. App. at 447.    

Accordingly, the issues of service connection for an acquired psychiatric disability and a TDIU are REMANDED for the following actions:
	
1.  Schedule the Veteran for an appropriate VA examination to determine whether there is a relationship between the diagnosed acquired psychiatric disability, to include depression and depressive disorder NOS, and a nexus between the disorder and active military service.  The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review has been accomplished.  Any necessary testing should be conducted and all pertinent findings and psychiatric diagnoses should be rendered and documented in the examination report.  

The VA examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the currently diagnosed psychiatric disability(ies), to include depression and depressive disorder NOS, had its origin in service or is in any way related to the Veteran's active service. 

The examiner is reminded that there is no requirement for the Veteran's assertions of in-service stressor events to be verified by VA for the issue of service connection for an acquired psychiatric disability on appeal. 

A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service.  If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond.  

2.  Provide the Veteran with additional VCAA notice on the issue of entitlement to a TDIU.

3.  Schedule the Veteran for the appropriate examination.  After reviewing the claims folder and examining the Veteran, the examiner is requested to enter an opinion as to whether the Veteran's service-connected disabilities of degenerative disc disease of the lumbar spine and radiculopathy of the left lower extremity, are so severe as to preclude substantially gainful employment.  

4.  Thereafter, the issues of service connection for an acquired psychiatric disability and a TDIU should be readjudicated.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).

These claims must be afforded expeditious treatment.  The law requires that all claims 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).



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).


Department of Veterans Affairs