Citation Nr: 1318344	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  06-06 054	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to a service-connected disability.

2. Entitlement to service connection for thoracic spine disability, to include as secondary to a service-connected disability.

3. Entitlement to service connection for a neurological disorder in the lower extremities, to include as secondary to a service-connected disability.

4. Entitlement to an initial rating greater than 20 percent for service-connected lumbosacral strain.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from April 1977 to December 1979. 

This matter is on appeal from rating decisions in February 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., and in June 2007 and April 2009 by the RO in Milwaukee, Wisconsin.  Jurisdiction over the appeal is currently with the RO in Milwaukee, Wisconsin.  

The Veteran testified before a Veterans Law Judge in March 2010.  A transcript of the hearing is of record.  While the Veteran Law Judge that presided over the March 2010 hearing has since retired from the Board, the Veteran was notified of this fact in September 2012, and offered the opportunity to be scheduled for a new hearing before another active Veterans Law Judge, pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and 38 C.F.R. § 20.707 (2012).  In a September 2012 statement, the Veteran waived his right to a new hearing, and requested that the Board proceed with the adjudication of his claims.  Therefore, no further action is required in this regard.  See 38 C.F.R. § 20.700 (2012).  

This appeal was previously remanded by the Board in August 2003, July 2010 and November 2002 for further development and is now ready for disposition.



FINDINGS OF FACT

1.  Degenerative arthritis and degenerative disc disorder to the lumbar and thoracic spine, as well as a neurological disorder in the lower extremities, were not shown in service or for many years thereafter, and are unrelated to active duty service or to a service-connected disability.

2.  Throughout the course of the appeal, the symptoms associated with the Veteran's low back, characterized by pain and a slightly limited range of motion, are substantially associated with a nonservice-connected disorder.  Moreover, forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome of any sort has not been shown.


CONCLUSIONS OF LAW

1. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by service, and is not related to service or to a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012).

2. Degenerative disc disease of the thoracic spine was not incurred in or aggravated by service, and is not related to service or to a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012).

3. A neurological disorder in the lower extremities was not incurred in or aggravated by service, and is not related to service or to a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012).

4. The criteria for a rating in excess of 20 percent for a lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and Assist

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

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice 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 v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  First, the Veteran's increased rating claim for his lumbosacral strain arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With regard to the service connection claims, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2007 and March 2009 that fully addressed all notice elements and was sent prior to the initial RO decisions in these matters.  The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA).  Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim.  

Next, VA examinations with respect to the issues on appeal were obtained in October 2004, May 2007, March 2009, and additional opinions were obtained in August 2010 and January 2013.  38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that these VA examinations, when viewed collectively, are more than adequate, as they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Finally, it is noted that this appeal was remanded by the Board in August 2003, July 2010 and November 2012 for further development. Specifically, in August 2003, the Board reopened the Veteran's prior denied service connection claim, and instructed the RO to acquire his SSA records and to provide him with a VA examination.  In the July 2010 Remand, the Board again instructed the RO acquire the Veteran's SSA records, and to obtain a clarifying medical opinion to regarding the nature of his lumbar spine disorder.  The November 2012 Remand requested a clarification of the previously provided opinion.  

The Board is now satisfied there was substantial compliance with these Remands.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, the RO has since obtained the Veteran's SSA records, and he was also provided with VA examinations in October 2004, July 2006, May 2007 and March 2009.  Additional opinions were also obtained in August 2010 and January 2013 which, as noted above, the Board finds adequate for adjudication purposes.  After the required development was completed, the issues were readjudicated and the Veteran was sent a supplemental statement of the case in February 2013.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders.  38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

The United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a).  As is relevant here, degenerative arthritis is such a disorder.  However, a neurological disorder like the one that is at issue here is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).  Service connection will also be presumed for certain chronic diseases, including degenerative arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). 

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

In this case, the Veteran has been service-connected for a lumbar strain since August 1999.  His assigned disability rating is 20 percent, under 38 C.F.R. § 4.71a, DC 5237 (addressing lumbosacral or cervical strains).  In February 2006, he submitted a statement asserting that he was experiencing continued back pain that was radiating into the thoracic spinal area, as well as into the lower extremities.  The RO has treated these statements, when reviewed in the context of the clinical evidence at that time, as claims for a lumbar spine disorder, thoracic spine disorder and a neurological disorder in the lower extremities.  

Although the location of the two disorders are the same (the low back area), it should be obvious that the Veteran's service-connected disability, which is muscular in nature, is separate and distinct from the claimed disorder now on appeal, which affects the actual spinal process itself.  Therefore, it is appropriate that the issue on appeal is one for service connection.  However, it should also be pointed out that, were the Veteran to be service-connected for a disorder in either the thoracic or lumbar spine, he would not be entitled to separate ratings for these back disorders.  Rather, the intent of the rating criteria is to account for the diminishment in earning capacity, see 38 C.F.R. § 4.1 (2012), and it is the symptoms (rather than the specific characteristics of a disorder) which is relevant.  See also 38 C.F.R. § 4.14 (2012) (the evaluation of the same disability under various diagnoses should be avoided).  However, as VA should endeavor to best identify to what extent his symptoms should be service-connected, consideration of the issues on appeal remains appropriate.  

The service treatment records indicate that the Veteran was treated for low back pain in service on a number of occasions.  In fact, service connection for his lumbar strain was previously granted substantially on the basis of these complaints.  However, there is no clinical evidence of any pathology to the lumbar spine itself.  For example, in March 1978, he complained of back pain for the past 8 days, but there was no indication of any pathology to the spine.  While subsequent evaluations in May 1978 and January 1979 also identified complaints of low back pain, no disorder to the spine was noted.  Significantly, although he complained of low back pain at his separation physical examination in October 1979, there was no indication of a disorder to the spine itself.  In fact, an X-ray taken that month was normal.  

With regard to his complaints related to a thoracic spine disorder or neurological symptoms in the lower extremities, the service treatment records do not indicate any complaints of or treatment for complaints related to neurological symptoms in the lower extremities or any disorder in the thoracic spine.  In fact, while there were continued complaints of back pain at a follow-up evaluation in April 1978, there was no indication of radiating pain.  Moreover, there were no complaints of neurological symptoms in the lower extremities or symptoms in the thoracic spine at his separation physical examination in October 1979.  Therefore, while the Veteran has complained of low back pain on a number of occasions while on active duty, a lumbar spine disorder, thoracic spine disorder or neurological symptoms in the lower extremities was not shown during that time.  

Next, the post-service evidence does not reflect symptoms related to a lumbar or thoracic spine disorder, or neurological symptoms in the lower extremities, for many years after the Veteran left active duty service.  Specifically, the first indication of a diagnosed disorder to the lumbar spine was not until February 2001, where a CT scan of the lumbar spine revealed a herniation at the L4-L5 disc with some mild circumferential disc bulges at the L2-L3 and L3-L4 discs.  This was also the first occasion where he complained of neurological symptoms in the lower extremities.  

A number of VA examiners have noted a marked increase in low back symptomatology in 1999, which led them to believe that the Veteran's lumbar spine injury occurred at that approximate time.  However, even if the Board were to presume that the first indications of a lumbar spine disorder were in 1999, this is still approximately 20 years after he left active duty.  

Regarding any disorder to the thoracic spine and neurological complaints in his legs, the first evidence of these disorders was not until August 2007, where the Veteran complained that his low back pain was also radiating up his back to the area between his shoulders, and down his legs.   However, an actual disorder to the thoracic spine was not observed until he underwent an MRI in March 2010 which indicated degenerative changes in the mid to upper-thoracic spine.  Nevertheless, even if one were to presume that the first symptoms of this disorder were in 2007, this is still 28 years after he left active duty.  As such, a continuity of symptoms for any of the disorders is not shown based on the clinical evidence.  

In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms.  The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

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 regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person.  Neurologic symptomatology such as numbness and pain in the extremities is one such example.  However, he is not competent diagnose specific spinal disorders, as these may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4.

Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In this case, the Board recognizes that the Veteran has experienced back pain since active duty.  However, the Board determines that the Veteran's reported history of continued symptomatology that is related specifically to a lumbar or thoracic spine disability (as opposed to a lumbar muscular strain) and neurological symptoms since active service, while competent, is nonetheless not credible.  In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991).

Notably, the Veteran's assertions of lumbar or thoracic spine pathology are contradicted by the clinical evidence of record.  For example, an X-ray of the lumbar spine at the time of his separation from active duty in October 1979 was normal.  Moreover, the statements he made in conjunction with his original claim for benefits in 1991 did not indicate symptoms like the ones he complains of now.  For example, in a September 1991 treatment note, he complained of only "mild aching," and he denied any radiating pain in the lower extremities.  

Moreover, at a VA examination in September 1991, he did not complain of any neurological disorders in the lower extremities, nor did he indicate that his low back symptoms were related to a spine disorder.  Moreover, an X-ray of the lumbar spine was normal.  Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements.  

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service, or another service-connected disability, and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary.  

The Veteran has undergone a number of VA examinations that were specifically directed toward the Veteran's complaints, and the opinions provided by various examiners have been substantially consistent that the Veteran's lumbar and thoracic spine disorders, as well as the neurological symptoms in the lower extremities, were less likely than not related to active duty service.  Rather, the consensus of opinion was that the Veteran's symptoms were due to a post-service injury that occurred in approximately 1999.  

For example, at his first VA examination in October 2004, the examiner noted that the Veteran had been treated for low back pain on a number of occasions in service.  However, the associated diagnosis was limited to a lumbar strain.  After a thorough examination of the Veteran, which included the Veteran's own recitation of his symptom history, the examiner differentiated between the Veteran's lumbar strain (which he did believe was related to service) and his current lumbar spine disorder (which he did not believe was related to service).  In providing this opinion, the examiner noted that the Veteran experienced a "significant increase in pain in 1999," and the disc herniation was diagnosed shortly thereafter.  

At his second VA examination in July 2006, the Veteran stated that his pain had worsened recently, and increased with an increase in activity.  He also mentioned that he received an epidural steroid injection in 2004.  After a review of the claims file and a thorough examination, this VA examiner also opined that the Veteran's degenerative disc disease was related to a post-service injury in 1999.  In providing this opinion, the examiner noted that a herniated disc is an "acute condition," which the Board presumes means would result in immediate symptoms, which is corroborated by the increase in complaints he had shortly thereafter.  

The observations and opinions of these two examinations were largely consistent with the observations and opinions of a third VA examiner in May 2007.  On that occasion, the examiner noted that the Veteran had experienced an increase in back pain only after his VA examination in 1991.  Moreover, much of his relevant treatment did not occur until 2000.  The examiner specifically noted a June 2000 treatment note where the Veteran complained of back pain for only the "past five years or so."  

After a review of the medical records and an examination of the Veteran, the examiner also noted that one examination prior to 1992 revealed a full range of motion in the back, and that he was able to remain employed.  In view of this, the examiner concluded that it was less likely than not that the Veteran's lumbar spine was related to service.  This same examiner also performed a VA examination in March 2009 and, after a review of the evidence submitted in the time between 2007 and 2009, his previously provided opinion was largely unchanged.  

In addition to the opinions provided above, the Veteran's claims file was again reviewed in August 2010 in order to determine whether the current disorders were related to his service connected low back strain or left foot disabilities.  After a review of the claims file, the VA examiner (who, incidentally, performed the October 2004 examination) opined that the Veteran's claimed disorders were not related to his service-connected disabilities.  In providing this opinion, the examiner reflected that there were substantially no residuals of his prior foot injury that would exacerbate his spine disorders.  Moreover, the examiner pointed out that a lumbar strain is a muscle and ligament disorder which, by definition, does not cause or aggravate degenerative changes in the spine.  According to a January 2013 addendum, the examiner also noted that degenerative changes in the spine were not manifest until 2001.  

The Board finds that these examinations and opinions are collectively adequate for evaluation purposes.  Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  There is no indication that any of the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact.  Moreover, the fact that the opinions provided by three separate examiners are largely the same carries significant probative value.  Additionally, none of the Veteran's outpatient treatment records contain any suggestion that his spine or neurological disorders that contradict the examiners' conclusions.  

The Board has also considered the statements made by the Veteran relating his disorders to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding the etiology of any kind of spine disorder.  See Jandreau, 492 F.3d at 1377, n.4. Because degenerative arthritis in the spine is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's lumbar and thoracic spine disorders are found to lack competency. Moreover, while the Veteran is at least somewhat competent to testify about the neurological symptoms in his lower extremities, the Board has found his statement to not be credible in this regard.  

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).

However, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).  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 Veteran.  38 C.F.R. § 4.3 (2012).

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

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012).

The Court of Appeals for Veterans Claims (CAVC) has also held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012).

In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

In this case, the Veteran is currently rated at 20 percent for a lumbosacral strain under 38 C.F.R. § 4.71a, DC 5237, which applies a general rating formula for assessing all back disabilities.  In order to warrant a rating in excess of 20 percent under this formula, the evidence must show: 
* Forward flexion of the thoracolumbar spine to 30 degrees or less; or
* Favorable ankylosis of the entire thoracolumbar spine (both at 40 percent).
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. See Plate V, 38 C.F.R. § 4.71a.

The Board notes that a rating in excess of 40 percent may also be warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  However, for the reasons discussed above, the Veteran is not service-connected for a spine disorder, but rather a muscle disorder in the lumbar area.  As such, the rating criteria relevant to intervertebral disc syndrome are not for application.   

Based on a review of the clinical evidence, a rating in excess of 20 percent is not warranted for two reasons.  First, the Veteran's disability picture is complicated by the fact that, while he is service-connected for a lumbar strain, his functioning is further impeded by his non-service connected lumbar spine disorder.  Based on the clinical evidence of record, it would appear that the substantial amount of his limitation is due to his nonservice-connected spine disorder.

In this regard, the Board notes the observations of the VA examiner who reviewed the Veteran's history in March 2009.  On that occasion, the examiner specifically noted that lumbar strains are typically stable conditions which do not progress.  Since the evidence prior to the Veteran's apparent spinal injury in 1999 indicated a full range of motion and employment with only minimally diminished functioning, it was likely that he would have continued to have a full range of motion if not for his subsequent post-service spine pathology.  

By stating that the Veteran's range of motion was normal prior to his subsequent injury, and projecting that it would not have worsened, this examiner essentially suggests that the Veteran's current 20 percent rating (which requires a showing of some limitation of motion) incorrectly includes impairment that is due to at least in part to a nonservice-connected disorder.  Put another way, the evidence suggests that the Veteran is already in receipt of a rating that exceeds what he should be entitled to due purely to his service-connected disability.  

However, even if the Board were to presume (for the sake of argument) that all of the Veteran's limitations were due to his lumbar strain, a rating in excess of 20 percent would still not be warranted, as the evidence does not show limitation of flexion to 30 degrees or ankylosis of any sort.  For example, in January 2002, the Veteran was seen for pain in the low back that had been present for only the past year.  Upon examination, he demonstrated a normal gait, and his range of motion was limited to only 40 degrees of forward flexion and 20 degrees of extension.  

These symptoms were largely consistent with what was observed at outpatient evaluations in October 2002.  On these occasions, the Veteran was able to ambulate with ease, and range of motion was again only limited to 40 degrees of forward flexion and 20 degrees of extension.  

At his VA examination in October 2004, the Veteran mentioned that he experienced intermittent flare-ups in his back, but he was at other times pain-free.  His pain was typically controlled with medications such as Naprosyn and Trazodone.  He rated the current low back pain as an 8 out of 10, but the flare-ups will occur with activities such as bending.  Upon examination, he exhibited some pain when sitting.  His range of motion was limited to 50 degrees of flexion and 20 degrees of extension.  While some spasms were noted in the lumbosacral muscles, pain did not increase upon palpation.  

At his VA examination in July 2006, the Veteran stated that his pain was managed through medication, and any type of activity aggravates his pain.  Upon examination, he had a normal gait, but stated that he was unable walk on his heels or toes.  His range of motion was limited to 40 degrees of flexion, although it was limited to 30 degrees by pain after repetition.  

At his third VA examination in May 2007, the Veteran reported that lying on his back causes significant pain that increases with movement.  However, he did not use a back brace, nor did he use any assistive devices in order to ambulate.  He is able to conduct normal housekeeping duties such as cooking and cleaning, and he was able to bathe himself.  Upon examination, he was able to stand independently, and exhibited a normal gait.  While tightness in the parispinal muscles was noted upon palpation, his range of motion was limited to only 60 degrees of flexion and 10 degrees of extension.  There was no additional limitation of motion after repetitive motion.  

The Veteran's symptoms in May 2007 were largely the same as what was observed at his most recent VA examination in March 2009.  On that occasion, the Veteran stated that he has constant low back pain, which had increased after he developed the degenerative changes in his lumbar spine.  This pain was located "deep in his back" and was associated with radiating pain in the lower extremities.  He stated that he had not worked since 1999, but was able to independently feed and bathe himself.  Upon examination he was able to stand independently, although he uses a cane to ambulate.  Examination of the lumbar spine revealed tenderness along the parispinal musculature, although none of the tenderness was localized.  His range of motion was limited to only 60 degrees of forward flexion and 10 degrees of extension.  There was no additional loss in range of motion upon repetitive testing.  

Moreover, while the Veteran was evaluated by a number of outpatient physicians, none of them indicate that a rating in excess of 20 percent would be warranted.  Specifically, in July 2005, his range of motion was observed to be normal.  Additionally, ankylosis was not shown on any occasion. 

Based on the results of these VA examinations and the outpatient treatment records, the Board concludes that the Veteran's range of motion was not so limited such that a rating in excess of 20 percent would be merited.  It is noted that the Veteran did exhibit a flexion that was limited on 30 degrees at his VA examination in July 2006, and at an outpatient physical examination in September 2008.  However, this single observed finding is contradicted by other measured ranges of motion which were well in excess of 30 degrees both before and after this examination.  Thus, over the entire period on appeal, his limitation in range of motion could not reasonably be considered sufficient to warrant an increased rating.  

In considering the claim, the Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased rating more than 20 percent for the Veteran's service-connected low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as much of his functional limitation is due to disabilities that are not service-connected.  

Moreover, the VA examiners have provided information relating to the amount of limitation that is caused by pain and fatigue. The examiners explicitly stated that there was no additional range of motion loss due to fatigue, lack of endurance, or incoordination and, to the extent that his service-connected disorder is causing limitation, the effect of that symptomatology is contemplated in the currently assigned disability rating.  

Next, the Board has considered whether a separate evaluation is warranted for any associated neurological abnormality.  Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a).  In this case, while the Veteran has complained of neurological symptoms in the lower extremities, the clinical evidence indicates that this is attributable to his nonservice-connected lumbar spine disorder rather to his service-connected lumbar strain.  

For example, the VA examiner in March 2009 stated specifically that the Veteran's neurological symptoms are a result of his lumbar disc disease, and that his service-connected muscle strain would not cause radiculopathy.  The VA examiner who reviewed the Veteran's medical record in January 2013 substantially agreed with the prior examiner's opinion that the Veteran's lumbar strain was not the cause of his neuropathy, as radiculopathy is caused by nerve injury resulting from injury to the spinal discs or other degenerative conditions in the spine.  Therefore, although there is evidence of neurological symptoms in the Veteran's lower extremities, the evidence indicates that it is due to nonservice-connected condition.  Consequently, a separate rating for any neurological abnormalities is not for application.  

The Board has also considered the Veteran's statements that his lumbar strain is worse than the rating he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

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.  He is not, however, competent to identify a specific level of disability of his lumbar strain according to the appropriate diagnostic codes.

On the other hand, such competent evidence concerning the nature and extent of the Veteran's lumbar strain has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

Next, the Board will consider whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008).  First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.

In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Moreover, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned.  Specifically, the Board has discussed the Veteran's functional limitations that may be associated with limitation of motion, but has found that such limitations do not override the quantitative evidence.  In any event, because his disability picture is so heavily influenced by nonservice-connected disabilities, it is likely that he already receives a rating in excess of what he is entitled to.  As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria.  

Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, when a Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, VA must consider whether such disabilities render him unemployable.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this regard, the Veteran has apparently been unemployed since 1999.   However, the issue of entitlement to TDIU was considered by the RO in June 2007, and the Veteran did not appeal this determination.  Moreover, there has not been any additional evidence since that time to support the assertion that he is unemployable due to his service-connected disabilities.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability is not for application.  

Based on evidence of record, the Board determines that a rating in excess of 20 percent for a low back strain is not warranted for the period on appeal.  As such, the appeal is denied.  


ORDER

Service connection for degenerative disc disease of the lumbar spine, to include as secondary to a service-connected disability, is denied.

Service connection for thoracic spine disability, to include as secondary to a service-connected disability, is denied.

Service connection for a neurological disorder in the lower extremities, to include as secondary to a service-connected disability, is denied.

An initial rating greater than 20 percent for service-connected lumbosacral strain is denied.




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs