Citation Nr: 1318734 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-30 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for spondylolisthesis with spinal fusion of L-4 to S-1. 2. Entitlement to a disability rating in excess of 50 percent for depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from October 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for a hip disability, Addison's disease, anemia, and a muscular disability of the back have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to a disability rating in excess of 50 percent for depression 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. FINDING OF FACT The Veteran's spondylolisthesis manifests with painful, limited motion that does not result in ankylosis of the entire spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent for spondylolisthesis with spinal fusion of L-4 to S-1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION 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)) redefined VA's duty to assist a claimant in the development of a claim. 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 a claimant 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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). However, insufficiency in the timing or content of VCAA notice is harmless 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 record shows that through a VCAA letter dated June 2007, the Veteran was informed of the information and evidence necessary to substantiate the claim. The Veteran was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. The case was readjudicated in November 2009. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, private treatment records, and lay evidence. No additional pertinent evidence has been identified by the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, she was provided with a meaningful opportunity to participate in the claims process and 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 or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. 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). Analysis Service connection for a spondylolisthesis with spinal fusion was awarded in an August 1979 rating decision. The Veteran filed the instant claim for an increased rating in June 2007. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Historically, the Veteran's spondylolisthesis with spinal fusion has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5293 when service connection was initially granted effective October 1986. The Board notes that effective September 26, 2003, VA revised the criteria for rating all disabilities of the spine, including intervertebral disc syndrome (IVDS). In this case, the Veteran filed a claim for an increased rating in June 2007. Therefore, in this case, only the revised criteria apply. Under the revised codes, spondylolisthesis with spinal fusion is rated under Diagnostic Code 5239. Diagnostic Code 5239 refers to the general rating formula for diseases and injuries of the spine. Under the general rating formula for diseases and injuries of the spine, ratings related to the thoracolumbar spine are assigned as follows: A 10 percent rating is warranted for 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; 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. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the 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. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent evaluation. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). To receive an increased rating under the new regulations, the evidence must show unfavorable ankylosis of the entire spine. The Veteran's treatment records show complaints of chronic pain and limitation of motion. A June 2005 private treatment record showed a decreased range of motion over his lumbosacral spine approximately 40 degrees. The Veteran is unable to stand up straight or lean backwards at all. The Veteran was afforded a VA examination of the spine in February 2008. At that time, the Veteran's range of motion was forward flexion to 40 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. The examiner noted no additional loss of range of motion with repetitive movement. The Veteran's motor and sensory exams were normal. The reflex exam showed a hypoactive ankle jerk, but no additional findings. The examiner found no cervical spine ankylosis or thoracolumbar spine ankylosis. Although the remainder of the Veteran's records shows consistent complaints and treatment for chronic back pain, the record does not show ankylosis of the entire spine. Also, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. It is not disputed that the Veteran has severe limitation of motion of the thoracolumbar segment of the spine and that there is pain on motion. However, neither the Veteran nor any examiner has established that pain or flare-ups result in functional loss that would equate to ankylosis of the entire spine. While range of motion is restricted, the Veteran retains a measurable range of motion of the lumbar spine of at least 40 degrees forward flexion. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating under these circumstances. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 60 percent disability rating adequately compensates him for any painful motion and functional loss. The Board has also considered whether an increased evaluation is in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the Veteran's disability. While the Veteran shown a hypoactive ankle jerk reflex, the Board notes that under the prior regulations, which resulted in the Veteran's 60 percent disability rating, the neurological aspects of the Veteran's disability were combined to provide the rating. If the Board were to separately grant a rating for a neurological disability, the Board would have to separately rate the Veteran's orthopedic disability under the new regulations to avoid pyramiding. The Board finds that such a decision would not be in the Veteran's favor. A June 2005 private treatment record showed a decreased range of motion over his lumbosacral spine approximately 40 degrees. In February 2008, the Veteran's range of motion was forward flexion to 40 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. These findings would warrant a 20 percent disability rating as they indicate forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees and a combined range of motion of the thoracolumbar spine of not greater than 120 degrees. The evidence does not show ankylosis of the thoracolumbar spine or forward flexion of 30 degrees or less as required for a disability rating greater than 20 percent. To receive an overall rating in excess of 60 percent for the back disability, the neurological symptoms would have to manifest to a degree of disability greater than 30 percent under the combined ratings table. 38 C.F.R. § 4.25. To obtain this, the evidence must show moderately severe paralysis of the sciatic nerve. A review of symptoms during the February 2008 VA examination showed no numbness, paresthesias, or leg or foot weakness. A neurological reflex exam showed a normal knee jerk response, but a hypoactive ankle jerk. The examiner no additional neurological findings. The examination included a normal sensory and motor exam. The record shows consistent complaints of back pain, but no significant neurological complaints. Therefore, the Veteran's paralysis of the sciatic nerve would be mild to moderate, but does not manifest at a moderately severe level. As such, providing a separate rating for muscular and neurological manifestations are not indicative of a higher combined disability rating. In this case, the most probative evidence indicates that the Veteran's spondylolisthesis manifests with painful motion that does not result in ankylosis of the entire spine. The evidence does show some muscle spasm, but not severe enough to manifest as ankylosis of the entire spine. Additionally, the Board notes that the Veteran is already service connected at the maximum level (60 percent) under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered whether the Veteran's low back disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology for the claimed condition and provide for additional or more severe symptoms than currently shown by the evidence. Thus, the disability picture for spondylolisthesis with spinal fusion is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. The Board also notes that the Veteran has already been granted a total disability rating for individual unemployability (TDIU) due to service-connected disabilities. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, supra; Gilbert, supra. ORDER Entitlement to a disability rating in excess of 60 percent for spondylolisthesis with spinal fusion is denied. REMAND During January 2010 treatment for his physical difficulties, the Veteran's private doctor noted that the Veteran's depression was worsening. The examiner did not provide any additional details. As the evidence indicates a worsening of his disability and it has been more than five years since the most recent VA examination, the Board finds that a new examination is required before a final decision on the merits may be made. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his disability. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Accordingly, the case is REMANDED for the following action: 1. Obtain mental health treatment records from the VA Medical Center in Nashville, Tennessee and all associated outpatient clinics dated from October 2009 to the present. All attempts to obtain these records must be documented in the claims file. 2. Schedule the Veterans for a VA psychiatric examination to ascertain and evaluate the current level of severity of the Veteran's depression. The examiner should review the claims file in conjunction with the examination. Any medically indicated special tests should be accomplished. The examiner should clearly report the extent of the Veteran's disability in accordance with VA rating criteria. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 , 3.655 (2011). 4. After completion of the above, the RO should review the expanded record and determine if a higher rating for the disability on appeal may be granted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs