Citation Nr: 1316679 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-36 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a compensable initial rating for degenerative arthritis and herniated nucleus pulposus of the lumbar spine prior to March 5, 2009. 2. Entitlement to an initial rating higher than 40 percent for degenerative arthritis and herniated nucleus pulposus of the lumbar spine since March 5, 2009. 3. Entitlement to an increased rating greater than 50 percent for bilateral flat feet with recalcitrant plantar fasciitis. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to December 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied an evaluation in excess of 50 percent for bilateral flat feet with recalcitrant plantar fasciitis. The rating decision also reopened a claim for service connection for degenerative arthritis and herniated nucleus pulposus of the lumbar spine, and denied it on the merits. In January 2009, the Board denied a rating in excess of 50 percent for the bilateral foot disorder. The Board reopened and remanded the claim for service connection for degenerative arthritis and herniated nucleus pulposus of the lumbar spine. The Veteran appealed the denial of an increased evaluation for bilateral flat feet to the United States Court of Appeals for Veterans Claims (Court). In February 2010, the parties filed a Joint Motion for Partial Remand (Joint Motion). That same month, the Court issued an order granting the Joint Motion and returned the case to the Board. In July 2010, the Board remanded the bilateral flat feet claim for further development. Unbeknownst to the Board at the time of the July 2010 remand, a September 2009 rating decision had granted service connection for degenerative arthritis and herniated nucleus pulposus of the lumbar spine, effective November 22, 2004, and assigned a noncompensable rating effective that date. A December 2011 rating decision assigned a 40 percent rating for the lumbar spine disability effective March 5, 2009. The RO issued a statement of the case (SOC) in December 2011, and the claimant perfected an appeal in January 2012. The Board remanded the issues on appeal in June 2012. The low back issues are now before the Board for final appellate consideration. The issue of entitlement to an increased rating greater than 50 percent for bilateral flat feet with recalcitrant plantar fasciitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record does not demonstrate that before March 5, 2009, the Veteran's degenerative arthritis and herniated nucleus pulposus of the lumbar spine resulted in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the 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; or incapacitating episodes having a total duration of at least one week but less than two weeks. 2. The competent medical, and competent and credible lay, evidence of record does not demonstrate that from March 5, 2009, the Veteran's degenerative arthritis and herniated nucleus pulposus of the lumbar spine have resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for degenerative arthritis and herniated nucleus pulposus of the lumbar spine prior to March 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for an initial rating higher than 40 percent for degenerative arthritis and herniated nucleus pulposus of the lumbar spine since March 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The December 2011 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law, including that concerning extraschedular evaluations. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased evaluation for the service-connected disability at issue. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, and various VA examination reports. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In this regard, the Board observes that the Veteran failed to respond to a July 2012 VA request for information. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also observes that all development requested by the Board's June 2012 remand has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA examinations were conducted in March 2009, November 2010 and October 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate, as their reports reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered. The examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. 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 Court of Appeals for the Federal Circuit (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 claims. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's spine disability is evaluated as intervertebral disc syndrome under Diagnostic Code 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula provides that, 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 rating is warranted forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the 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. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Note (1) to the General Rating Formula provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately, under an appropriate diagnostic code. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Incapacitating Episodes Formula provides that a 10 percent disability rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) provides that for purposes of evaluations 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. Diagnostic Code 5243. The Veteran generally asserts that he is entitled to higher initial evaluations for his lumbar spine disability, both before and after March 5, 2009. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against a compensable initial rating for degenerative arthritis and herniated nucleus pulposus of the lumbar spine prior to March 5, 2009. The Board also finds that the preponderance of the evidence is against an initial rating higher than 40 percent for degenerative arthritis and herniated nucleus pulposus of the lumbar spine since March 5, 2009. Compensable Initial Rating Prior to March 5, 2009 The Veteran submitted his application to reopen a claim for service connection for degenerative arthritis of the lumbar spine on November 22, 2004. Thus, the appeal period begins November 22, 2003. Relevant evidence dated during the appeal period includes private and VA treatment records. These records simply fail to show that the Veteran's service-connected lumbar spine disability resulted in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the 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. See the General Rating Formula. These records also simply fail to show that the Veteran's service-connected lumbar spine disability resulted in incapacitating episodes having a total duration of at least one week but less than two weeks. See the Incapacitating Episodes Formula. Initial Rating Higher than 40 Percent, Since March 5, 2009 The reports of the March 2009 VA examination, November 2010 VA examination, and October 2012 VA examination provide that the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine, even after repetitive testing. See the General Rating Formula. They are also negative for any evidence of incapacitating episodes having a total duration of at least six weeks. See the Incapacitating Episodes Formula. VA treatment records, dated through February 2013, are also negative for evidence of unfavorable ankylosis of the entire thoracolumbar spine, or evidence of incapacitating episodes having a total duration of at least six weeks. See the General Rating Formula and the Incapacitating Episodes Formula. With respect to each claim on appeal, the Board is aware of the Veteran's credible complaints of pain, made during VA examinations. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which lumbar spine disabilities are evaluated. The observable symptoms that the Veteran describes simply do not satisfy the criteria for a compensable initial evaluation for the period before March 5, 2009, or the criteria for an initial evaluation in excess of 40 percent for the period from March 5, 2009. As noted above, there are no clinical findings congruent with a higher evaluation. The Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's service-connected disability are contemplated in the compensable initial evaluation for the period before March 5, 2009, and the criteria for an initial evaluation in excess of 40 percent for the period from March 5, 2009. The foregoing evidence simply does not show that pain, due to the service-connected disability, has caused functional loss warranting higher evaluations under the General Rating Formula. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's lumbar spine disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's lumbar spine disability results in limitation of motion. The General Rating Formula provides ratings based on limitation of motion. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluations are adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has been awarded a total rating for compensation based on individual unemployability (TDIU). Thus, the record does not raise a claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to a compensable initial evaluation for degenerative arthritis and herniated nucleus pulposus of the lumbar spine for the period before March 5, 2009, or an initial evaluation in excess of 40 percent for degenerative arthritis and herniated nucleus pulposus of the lumbar spine for the period from March 5, 2009. Thus, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A compensable initial rating for degenerative arthritis and herniated nucleus pulposus of the lumbar spine prior to March 5, 2009, is denied. An initial rating higher than 40 percent for degenerative arthritis and herniated nucleus pulposus of the lumbar spine since March 5, 2009, is denied. REMAND A preliminary review of the record indicates that the Veteran's claim for an increased rating greater than 50 percent for bilateral flat feet with recalcitrant plantar fasciitis requires additional development. The July 2010 remand requested that the Veteran be provided a VA examination. The VA examiner was to provide an opinion as to whether or not the Veteran was unemployable; and if so, whether his unemployability was at least as likely as not (meaning 50 percent or more probable) attributable to his service-connected bilateral flat feet with recalcitrant plantar fasciitis. The purpose of this request was to provide information regarding whether an extra-schedular rating was warranted for the Veteran's bilateral flat feet with recalcitrant plantar fasciitis, to include whether there was marked interference with employment. An extra-schedular rating is intended to be based on impairment exclusively due to the service-connected disability. The Joint Motion dated in February 2010 had concluded that the Board had not adequately discussed whether the industrial impairment which the Veteran was experiencing was due to nonservice-connected disability versus service-connected disability, and whether the causes of such disability could be separated. The JMR indicated that the Board should consider obtaining an examination to address these issues. In a May 2011 addendum to a September 2010 VA examination report, a VA examiner stated that he could not determine if the Veteran's unemployability was at least as likely as not (50/50) attributable to his service-connected bilateral feet with recalcitrant plantar fasciitis. However, the examiner also stated that from a podiatric point of view, it was his opinion that the Veteran could perform complete sedentary work. The Board finds that these May 2011 opinions are inadequate. First, they are contradictory and inconsistent. In addition, the examiner fails to address whether the Veteran's service-connected disability precluded non-sedentary work. This failure is particularly significant in light of the fact that a May 2004 private medical record relates that the Veteran was "completely disabled from any gainful employment" due in part to his foot problems. The VA examiner also fails to provide any rationale, or refer to any physical findings, clinical data or medical principles in support of his opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999), (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). As VA did not conduct all necessary development, the development requested by the Board's July 2010 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall, supra. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who conducted the September 2010 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder, including the September 2010 VA examination report and the May 2011 addendum, in order to fully address whether or not the Veteran's unemployability is at least as likely as not (meaning 50 percent or more probable) attributable to his service-connected bilateral flat feet with recalcitrant plantar fasciitis. The examiner should also provide any additional information which is useful in assisting the Board in addressing whether the Veteran experiences marked interference with employment due to the service-connected disorder of the feet. The term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file, including a complete copy of this remand, must be made available to the designated examiner for review of the pertinent medical and other history. The examiner is requested to provide a complete rationale for any opinion expressed. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Then, readjudicate the Veteran's claim, to include whether the matter should be referred for extra-schedular consideration. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs