Citation Nr: 1315404 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-05 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for POEMS syndrome. 2. Entitlement to an initial disability rating higher than 60 percent for lumbar spine degenerative disc disease with erectile dysfunction. 3. Entitlement to an initial disability rating higher than 10 percent for cervical spine degenerative disc disease. 4. Entitlement to a disability rating higher than 20 percent from October 11, 2006, for cervical spine degenerative disc disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to November 1964. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Los Angeles, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a December 2003 rating decision, the RO granted service connection for lumbar spine degenerative disc disease and assigned a 10 percent disability rating. In an April 2004 rating decision the RO denied service connection for POEMS syndrome. The RO granted service connection for cervical spine degenerative disc disease and assigned a 10 percent disability rating. In a July 2007 rating decision, the RO increased the disability rating for lumbar spine degenerative disc disease from 10 percent to 20 percent effective October 11, 2006, and increased the disability rating for cervical spine degenerative disc disease from 10 percent to 20 percent effective October 11, 2006. In a May 2011 rating decision, the RO granted service connection for erectile dysfunction. The RO evaluated erectile dysfunction as part of the lumbar spine disability. The RO increased the initial disability rating for lumbar spine degenerative disc disease with erectile dysfunction to 60 percent. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issue of entitlement to special monthly compensation based on the need for aid and attendance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of higher disability ratings for cervical spine degenerative disc disease 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. Exposure during service to paint and chemicals caused the development of POEMS syndrome that was diagnosed after service. 2. From November 12, 2012, lumbar spine degenerative disc disease has produced limitation of motion and incapacitating episodes but has not been manifested by unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. POEMS syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. From November 12, 2012, lumbar spine degenerative disc disease has not met the criteria for a disability rating higher than 60 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in April 2003, September 2006, October 2006, May 2007, June 2008, and August 2009. Those letters addressed the information and evidence necessary to substantiate claims for service connection and increased disability ratings, and informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service treatment records, post-service treatment records, and VA examination reports. The Veteran has had VA examinations that were adequate for evaluating his lumbar spine disability. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). POEMS Syndrome The Veteran contends that POEMS syndrome that was diagnosed after service developed as a result of events in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran does not contend that symptoms of POEMS syndrome became manifest during his active service. His service treatment records are silent as to any peripheral neuropathy, organomegaly, endocrinopathy, monoclonal gammopathy, or skin changes. In VA treatment in December 2001 the Veteran was noted to have peripheral neuropathy and a plasmacytoma. The treating physician raised a question as to whether the Veteran had POEMS syndrome. In June 2002, testing showed monoclonal gammopathy. In July 2002, the treating physician diagnosed POEMS syndrome. The Veteran received VA treatment for the syndrome from 2002 forward. On VA examination in August 2003 the Veteran reported that during service he worked painting ships' decks and also worked with chemicals. The examiner provided the opinions that the Veteran's lumbar spine degenerative joint disease might or might not be related to his POEMS syndrome and might or might not be related to his service-connected activity. On VA examination in October 2003, M. P., M.D., reported having reviewed the Veteran's claims file. Dr. P. opined that the Veteran's POEMS syndrome was not secondary to his lumbar spine degenerative disease, but was as likely as not related to the Veteran's service duties as a deck painter and working with chemicals. Dr. P. expressed a probability that the chemicals to which the Veteran was exposed might be responsible for his POEMS syndrome. Dr. P. was asked to further explain his opinion. Dr. P. responded that the etiology of POEMS syndrome was not known, but that history showed a probable connection of POEMS syndrome to radiation exposure. Dr. P. indicated that one could not categorically state that chemicals are or are not involved in the etiology of POEMS syndrome. In a statement received in 2006, private physician R. C. M., M.D., wrote that the Veteran's lumbar spine degenerative process "may very well be" service connected and that it "is likely as not due to the POEMS syndrome." That statement addresses the etiology of the Veteran's lumbar spine disorder rather than the etiology of his POEMS syndrome. In his statements Dr. P.'s at least equivocally supported a causal link between the Veteran's exposure to paint and other chemicals during service and the development of his POEMS syndrome. The Board finds that the record supports service connection for the Veteran's POEMS syndrome. Lumbar Spine Degenerative Disc Disease The Veteran has appealed the disability rating assigned for his lumbar spine degenerative disc disease with erectile dysfunction. In a December 2003 rating decision, the RO granted service connection, effective November 12, 2002, for degenerative disc disease of the lumbar spine. The RO assigned a 10 percent disability rating. In a July 2007 rating decision, the RO increased the disability rating for lumbar spine degenerative disc disease from 10 percent to 20 percent effective October 11, 2006. In a May 2011 rating decision, the RO granted service connection for erectile dysfunction. The RO evaluated erectile dysfunction as part of the lumbar spine disability. The RO increased the initial disability rating (the rating effective November 12, 2002) for lumbar spine degenerative disc disease with erectile dysfunction to 60 percent. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating 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 evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The lumbar spine disability rating on appeal is effective November 12, 2002, the effective date of service connection for that disability. The Board will consider the evidence for the entire period since that date and will consider whether higher ratings are warranted for any period. The rating schedule provides for evaluating intervertebral disc syndrome under a General Rating Formula for Diseases 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The General Rating Formula for Diseases and Injuries of the Spine provides for evaluating disorders of the thoracolumbar spine as follows: 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 Unfavorable ankylosis of the entire spine ... 100 percent Unfavorable ankylosis of the entire thoracolumbar spine ..................................................... 50 percent Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ..................................... 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ................ 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 ................... 10 percent Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months .. 60 percent With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months ............................................. 40 percent With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months ............................................. 20 percent With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months ......................................... 10 percent Note (1): For purposes of evaluation under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The rating schedule does not include a diagnostic code for erectile dysfunction. If there is deformity of the penis with loss of erectile power, a 20 percent rating is assigned under 38 C.F.R. § 4.115b, Diagnostic Code 7522. In addition, VA awards special monthly compensation for loss of use of a creative organ. 38 C.F.R. § 3.350(a)(1) (2012). The RO awarded the Veteran special monthly compensation based on his erectile dysfunction. The RO has assigned a 60 percent initial disability rating for the Veteran's lumbar spine degenerative disc disease. The General Rating Formula for Diseases and Injuries of the Spine provides for a rating higher than 60 percent only if there is unfavorable ankylosis of the entire spine. The Veteran has had VA and private medical treatment for his lumbar spine disability. He underwent lumbar spine surgery with L3 to L5 fusion in March 2009. He had VA examinations of his lumbar spine in August 2003, April 2005, October 2006, July 2010, and December 2012. The treatment records and examination reports do not show unfavorable ankylosis of the entire spine at any time from 2002 forward. The 60 percent rating assigned for the Veteran's lumbar disc disease is the maximum rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A higher rating on a schedular basis is not available under that formula. The special monthly compensation awarded based on the Veteran's erectile dysfunction addresses that disorder. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran has not had frequent hospitalizations for his lumbar disc disease. His lumbar disc disease makes him unable to perform physically demanding work. The RO assigned a total disability rating based on individual unemployability (TDIU), recognizing that the combined effects of his lumbar disc disease and his cervical disc disease make him unable to secure or follow a substantially gainful occupation. The Veteran's lumbar spine symptoms and resulting disability fit within the rating criteria, and the rating criteria provide for a higher rating when there is even greater disability. It is therefore not necessary to refer the rating of his lumbar disc disease for consideration of an extraschedular rating. As the RO has granted a TDIU, the issue of unemployability has been addressed, and it is not necessary to consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to service connection for POEMS syndrome is granted. From November 12, 2002, entitlement to a disability rating higher than 60 percent for lumbar spine degenerative disc disease is denied. REMAND The Veteran contends that his cervical spine disability has worsened since the October 2006 VA medical examination that most recently addressed that disorder. The Board therefore remands the rating issues for a VA examination to determine the current manifestations of that disability. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The RO should provide the examiner who will review the file in conjunction with this remand all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to obtain information as to the current manifestations and effects of the Veteran's cervical spine disability. Provide the examiner with the Veteran's claims file for review. Take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinician who is asked to review the claims file and provide medical findings in conjunction with the development requested herein. The cervical spine disc disease manifestations reported should include ranges of motion, any neurological effects, and the duration of any incapacitating episodes over the year preceding the examination. 2. Thereafter review the expanded record and reconsider the claim. If any remanded claims remain less than fully granted, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that is 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs