Citation Nr: 1318815	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  02-19 159	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for lumbar spine fracture residuals with degenerative disc disease (DDD), currently evaluated as 70 percent disabling.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a cerebrovascular accident (CVA) and its residuals.

3.  Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A).

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Seesel, Counsel
INTRODUCTION

The Veteran served on active duty from September 1974 to September 1976.

These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In October 2001, the RO denied a rating in excess of 50 percent for residuals of a lumbar spine fracture, and denied a claim for compensation under 38 U.S.C.A. § 1151 for residuals of CVA.

In July 2002, the Veteran, his wife, and his daughter testified during a hearing before a decision review officer (DRO) at the RO; a transcript of that hearing is of record.  In September 2002, the RO increased the rating for the Veteran's low back disability from 50 to 70 percent effective June 2000.  See A.B. v. Brown, 6 Vet. App. 35 (1993).

The Board first considered this appeal in November 2003.  At that time, the Board recharacterized the increased rating claim as a claim for an increased rating for lumbar spine fracture residuals with DDD.  Both the increased rating claim and the claim under 38 U.S.C.A. § 1151 were remanded for further development.  In May 2005, the Board denied the Veteran's claims of entitlement to an increased rating for a lumbar spine fracture residuals with DDD and entitlement to compensation under 38 U.S.C.A. § 1151.  The Board granted a separate 10 percent rating for right leg radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520.  The Veteran subsequently appealed the denials of his claims to the United States Court of Appeals for Veterans Claims (Court).  In an Order dated in January 2007, the Court granted a Joint Motion for Remand (JMR) submitted by the parties in the case and vacated the Board's May 2005 decision.

In February 2008, the Board remanded the claims to the RO pursuant to the instructions in the JMR.  While on remand, the RO implemented the Board's grant of a separate 10 percent rating for right leg radiculopathy as related to the lumbar spine disability in a December 2009 rating decision.

Separately, in April 2007, the RO denied the Veteran's claim for entitlement to SMC based on aid and attendance.  That claim was consolidated with the claims discussed above.

The Board considered the claims in a January 2012 decision.  At that time, the Board denied the claims for increased evaluations for the lumbar spine fracture residuals with DDD and right leg radiculopathy, denied the claim for entitlement to SMC based on aid and attendance, granted a separate evaluation for a deformity of a thoracic spine vertebral body and remanded the claim entitlement for compensation under 38 U.S.C.A. § 1151.  The Veteran appealed the Board's decision to the Court.  In an Order dated in August 2012, the Court granted a JMR submitted by the parties in the case and vacated the portion of the Board's January 2012 decision that denied an increased rating for the lumbar spine fracture residuals with DDD and SMC based on aid and attendance.  The JMR specifically indicated that the parties did not wish to disturb those portions of the January 2012 Board decision that granted a separate rating for deformity of the thoracic spine vertebral body and denied an increased evaluation for right leg radiculopathy.  As such, those issues are not presently before the Board for consideration.  

After considering the Joint Motion, the Board again remanded the claims for further development in November 2012.  The RO/Appeals Management Center (AMC) completed all requested development from the January 2012 remand of the 1151 claim and the November 2012 remand of the claims for an increased evaluation for the lumbar spine fracture residuals with DDD and entitlement to SMC, but continued the denial of benefits sought.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the appeal was properly returned to the Board for adjudication.  

The issues of entitlement to TDIU is being REMANDED and is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 


FINDINGS OF FACT

1.  The Veteran's lumbar spine fracture residuals with DDD are not manifested by residuals of a fracture with cord involvement, bedridden or requiring long leg braces nor have they been manifested by unfavorable ankylosis of the entire spine. There were no incapacitating episodes.

2.  The Veteran's lumbar spine fracture residuals with DDD do not present with an exceptional or unusual disability picture.

3.  The Veteran sustained a CVA with residuals of left hemiparesis on May 3, 2000.

4.  There is no competent evidence which shows that the VA physicians did not exercise the degree of skill and care ordinarily required in diagnosing and treating the condition or that the CVA and its residuals, including left hemiparesis, would have been avoided had a proper diagnosis or treatment been made.  

5.  The record reflects the Veteran is in receipt of service connection for residuals of a fracture of the lumbar spine with multilevel DDD, evaluated as 70 percent disabling; a deformity of a thoracic spine vertebral body, evaluated as 10 percent disabling; radiculopathy of the right leg, evaluated as 10 percent disabling; residuals of a fracture to the left wrist, evaluated as non compensable; and, a laceration to the right forearm, evaluated as noncompensable.  

6.  The evidence does not demonstrate the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes or concentric contraction of the visual field to five degrees or less, nor is he a patient in a nursing home because of mental or physical incapacity. 

7.  The evidence demonstrates it is likely that the Veteran's service-connected conditions render him so helpless as to be in the need of regular aid and attendance. 


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 70 percent for the lumbar spine fracture residuals with DDD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.59, 4.71, 4.71a, Diagnostic Code 5285, 5292, 5293 (2000-2001); 4.71a, Diagnostic Code 5285, 5293 (2002); 4.71a, Diagnostic Code 5235, 5242, 5243 (2003-2012).

2.  The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for a CVA and its residuals, including left hemiparesis, as a result of VA treatment have not been met.  38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012); VAOGCPREC 05-01 (February 5, 2001). 

3.  The requirements for SMC on account of being in the need of the aid and attendance of another person have been approximated.  38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

Upon receipt of an application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and 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.  This notice must be provided prior to an initial unfavorable decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted.  

In the present case, letters sent to the Veteran in August 2000, February 2001, March 2004, November 2004, September 2006, December 2006, October 2007, July 2008, November 2012, and December 2012 fully addressed all notice elements.  The claim was subsequently readjudicated in July 2012 and February 2013 supplemental statements of the case.

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Trafter v. Shinseki, ---Vet. App. ---, 2013 WL 1789774, * 7 (applying 38 U.S.C.A. § 5103A (d)(1) to 38 U.S.C.A. § 1151 claims).  The record includes the service treatment records, VA outpatient treatment records, private medical records, lay statements, and the report of VA examinations.  

The Board finds that the January 2013 VA examination that provided an opinion as to the severity of the lumbar spine fracture residuals is adequate.  The examiner considered the Veteran's subjective history and complaints and performed a thorough physical examination providing all necessary findings to evaluate the claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  The examiner also provided statements that were responsive to the Board's remand directives.  See Stegall, 11 Vet. App. at 271.  Similarly, the Board finds the August 2002, November 2008, and February 2012 VA opinions concerning the 38 U.S.C.A. § 1151 claim are adequate.  The examiners reviewed the relevant documents, considered the entire history, and provided opinions with full rationales.  See Stefl, 21 Vet. App. at 124.

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  In fact, in September 2012, the Veteran reported that he had nothing else to submit and in February 2013 the Veteran's representative indicated there was no additional evidence to be submitted.  Hence, no further notice or assistance is required to fulfill VA's duty to assist.  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). 

Lumbar Spine

The Veteran seeks an increased evaluation for the lumbar spine fracture residuals with DDD.  By way of history, the Veteran was granted service connection in a November 1996 Board decision.  The Board's grant of benefits was implemented in a December 1996 rating decision, and, at that time a 10 percent evaluation was assigned under Diagnostic Code 5285-5292.  Prior to the decision on appeal, the Veteran sought higher ratings and was assigned a 50 percent evaluation.  In June 2000, the Veteran filed a claim for an increased evaluation.  During the pendency of this appeal, a 70 percent evaluation was granted in a September 2002 rating decision, effective June 26, 2000.  The September 2002 rating decision indicated that the claim was evaluated under Diagnostic Codes 5285-5293.  Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See A.B. v. Brown, 6 Vet. App. 35 (1993).  As such, the Veteran's claim for an increased disability rating remains on appeal.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability (during the rating period) that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

As noted above, the Veteran's lumbar spine disability was initially evaluated under Diagnostic Codes 5285-5293.  When the Veteran filed him claim in June 2000, Diagnostic Code 5285 provided for a 60 percent evaluation for residuals of a fracture of the vertebra without cord involvement; abnormal mobility requiring neck brace (jury mast).  A 100 percent evaluation was warranted for residuals of a fracture with cord involvement, bedridden, or requiring long leg braces.  A note also indicated to consider special monthly compensation; with lesser involvements rate for limited motion and nerve paralysis.  Other cases were to be rated in accordance with definite limited motion or muscle spam, adding 10 percent for demonstrable deformity of vertebral body.  A note explained that both under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment.  

At the time the Veteran filed his claim, Diagnostic Code 5292 evaluating limitation of motion of the lumbar spine, and Diagnostic Code 5293 evaluating intervertebral disc syndrome had maximum ratings lower than the currently assigned 70 percent evaluation.  Other diagnostic code provisions that could have been applied include Diagnostic Code 5286 for complete bony fixation (ankylosis) of the spine.  Under this Diagnostic Code, a 60 percent evaluation was warranted if there was ankylosis at a favorable angle and a 100 percent evaluation was warranted if there was ankylosis at an unfavorable angle with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type).  See 38 C.F.R. § 4.71(a), Diagnostic Code 5286 (2000-2002). 

The regulations used to evaluate diseases and injuries of the spine have changed twice, effective on September 23, 2002, and on September 26, 2003.  See 38 C.F.R. § 4.71a  (Diagnostic Codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5292, 5293, 5294, 5295) (2002); 38 C.F.R. § 4.71a  (Diagnostic Code 5293)(2003); 38 C.F.R. § 4.71a  (Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243)(2004).  Where a law or regulation changes during the pendency of a claim for an increased rating, VA should first determine whether the revised version is more favorable to the Veteran.  In so doing, it may be necessary for VA to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, however, the retroactive reach of the new regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of the change.  See VAOPGCPREC 3-2000 (Apr. 10, 2000); see also 38 C.F.R. § 3.114. 

The changes in the regulations effective September 23, 2002 did not alter the schedular criteria under Diagnostic Codes 5285 or 5286.  Effective September 23, 2002, the schedular criteria used to evaluate intervertebral disc syndrome were amended and provided for evaluations based on the frequency and total duration of incapacitating episodes.  The 2002 changes to Diagnostic Code 5293 for intervertebral disc syndrome provided for evaluations based on the frequency and total duration of incapacitating episodes.  An incapacitating episode was defined as 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. 

Under Diagnostic Code 5293, a 20 percent evaluation was assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Diagnostic Code 5293 also provided an alternative method for evaluating intervertebral disc syndrome by providing for separate evaluations for chronic orthopedic and neurological manifestations along with evaluations for all other disabilities in assigning whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003).  Another note explained that if intervertebral disc syndrome is present in more than one spinal segment with clearly distinct effects, each segment may be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id.

Effective September 26, 2003, the Schedule for Rating Criteria mandated that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine.  This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease.  Under this formula, a 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire spine.

A note after the General Rating Formula for Diseases and Injuries of the Spine 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) to the General Rating Formula explains that 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.  Note (5) defines unfavorable ankylosis as 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.  

Assignment of a disability rating should take into account a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability using the limitation of motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45, 4.59; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body.  See 38 C.F.R. § 4.40 (noting that disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance and indicating that a part which becomes painful on use must be regarded as seriously disabled); Mitchell, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' may constitute functional loss); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991) (noting that "functional loss due to pain is to be rated at the same level as the functional loss where flexion is impeded").

In the present case, the Veteran has clearly been treated consistently for his low back disability.  The record reflects the Veteran was seen frequently and treated with pain medication, muscle relaxants, and physical therapy.  As noted above, the Veteran was provided an effective date of June 26, 2000, the date of his claim for an increased evaluation.  38 C.F.R. § 3.400 (b)(2).  The Veteran has not challenged the effective date; however, as the increase could potentially be as early as 1 year prior to the date of the claim, the Board has considered findings for the period beginning June 1999.  38 C.F.R. §3.400 (o)(2).

VA records from 1999 reflect reports of limitations in movement, sometimes minimum sometimes moderate; however, these records generally did not provide the limitation of motion in degrees.  Significantly, a September 1999 record noted full range of motion of the lumbar spine.

The Veteran was afforded a VA examination in November 2000.  He reported taking medication and muscle relaxers and the examiner noted the Veteran walked with a cane.  Examination of the back was unsatisfactory because the hemiparesis prevented him from doing usual things well.  He was unable to work because of the stroke but previously worked as a plumber and pipefitter.  He was restricted from using a jackhammer, driving a bobcat tractor, or digging below 5 feet.  Examination of the trunk illustrated he was unable to bend backwards at all.  He could bend forward 10 degrees and his fingers reached the upper thighs.  Shoulders twisted 10 degrees to the right and 8 degrees to the left and side bending was present to 8 degrees on the right and to 6 degrees on the left.  There were definite paraspinus spasms on bilateral bending and twisting.  The impression was status post 2 falls on active duty in 1975, wedging of T12 and L1 vertebral bodies, multilevel bulging discs in the lumbar spine, and chronic low back strain and spasm.  

During an August 2002 VA examination, the Veteran described generalized weakness and indicated at times he could not get out of bed.  He used a brace of the left leg and cane.  He described increasing back pain, radiating to the right leg and occasionally had numbness of right leg and foot.  He treated with pain medication.  Due to left side weakness he relied almost entirely on the right side for ambulation.  

Clinical examination revealed no scoliosis of the back.  There was an increase in lumbar paraspinous muscle tone of the right.  He could not extend the back at all and could flex to 20 degrees with pain.  Lateral movement to 20 degrees in either direction produced pain.  Rotation was not tested because of severe pain.  The assessment was history of fracture of the lumbar spine in 1974 with more recent x-ray of the back showing anterior wedging of T12, L1, and L2, as well as presumed acute fracture of the third and fourth sacral segments that were not displaced also the interim development of disk narrowing at L3-L4 and L4-L5.  The examiner indicated the Veteran had severe back pain and a progressive severe disability.  

During a July 2008 VA examination, the Veteran reported continuous back pain that was 10/10 severity at rest and worse with activity.  He could only stand 3-5 minutes or walk 10 yards with use of a cane.  He had a severe limp.  No other braces or assistive devices were used.  He took muscle relaxers and denied incapacitating episodes or flare-ups.  Pain was described as steady.  He denied bowel or bladder incontinence.  He had not worked as a plumber since the CVA.  

On clinical examination anterior flexion from a sitting position was done as he could not do it standing and he could not extend the back past 0 degrees.  He had flexion 0 to15 degrees.  Laterally he had 0-10 degrees and rotation was not attempted.  Straight leg raise was positive bilaterally.  There was no scoliosis.  There was increase in paraspinous muscle tone, right more than left, with tenderness but no true spasm.  There was almost complete absence of the lumbar curve.  The Veteran could not perform repetitive motion testing. No flares-up were reported.  

The diagnosis was traumatic fracture of T12 and L1 in 1975 and cerebral thrombosis in the distribution of the right middle cerebral artery with severe persistent left sided hemiparesis and DDD of the lumbar spine with back pain and right leg radiation and severe disability and progression in large measure due to the severe weakness of the left side from the prior stroke.  The Veteran was severely limited and severely symptomatic all of the time.  The examination showed severe painful motion and spasm, and severe weakness of the left.  There was no tenderness.  There were no incapacitating episodes over the last 12 months.  

The Veteran was afforded a VA examination in March 2011 to assess the severity of his spine.  He described lower back pain radiating to the right extremity, occasionally the whole leg, other times just to the knee.  He indicated he could not lie or sit down for prolonged periods secondary to the back.  Pain was described as sharp.  He described a number of falls secondary to dragging the left foot since his stroke.  He denied periods of flare-ups and indicated pain was constant.  He reported constipation from medication but no bowel or bladder incontinence.  He reported weakness in the left lower extremity and occasionally the right lower extremity and numbness in both lower extremities.  He did not use assistive devices or braces for the back but used a cane for left hemiplegia.  He worked in an office but was a plumber and pipe fitter prior to the stroke.  He found it difficult to work due to his back when he was a plumber/pipe fitter.  He has not missed days of work due to the back condition and had no incapacitating episodes in the past 12 months.  He had a left hemiplegic gait with a cane.  

Clinical examination revealed some tenderness at the lumbar paraspinous musculature with some spasm.  There was flexion from 0-90 degrees, extension, right and left lateral rotation and flexion were all 0-5 degrees producing pain throughout those ranges.  There was no additional limitation following repetitive use other than increased pain with further loss of motion to complete loss of motion.  There were no flare-ups.  He did have weakness in low back and extremities that causes complete loss of motion.  Otherwise there was no effect of fatigue or lack of endurance on spinal function.  Extremities had lack of endurance, incoordination, fatigue, and weakness with repetitive use.  

The diagnoses were fractured lumbar spine with DDD and ongoing right lower extremity radiculopathy, and effects of left hemiplegia adding to the spine condition.  In terms of employability, the examiner indicated the Veteran was unable to maintain gainful employment in his chosen field of pipefitter/plumber due to the spine and hemiplegia.  Regarding the current office job, his hemiplegia and spine would also contribute to him being unable to maintain gainful employment in that sedentary form of occupation as it would also in pretty much any sedentary form of occupation.  

The Veteran was afforded another VA examination in January 2013.  The examiner diagnosed degenerative joint disease and DDD of the lumbar spine.  The Veteran described complaints of daily low back and right leg pain.  There was some improvement with medication.  He used a cane and a left foot/ankle brace.  He reported occasional falls due to a stroke.  The Veteran denied any flare-ups that impacted the function of his back.  

Range of motion testing reflected flexion from 0 to 20 degrees, extension to 0 degrees, bilateral lateral flexion to 10 degrees and bilateral rotation to 10 degrees.  There was no objective evidence of painful motion on any of the tested ranges.  After repetitive use, the Veteran continued to have flexion to 20 degrees, extension to 0 degrees, and bilateral lateral flexion and rotation to 10 degrees.  The examiner indicated there was no additional limitation of motion in the spine following repetitive use.  There was functional loss described as pain on movement, and interference with sitting, standing, and/or weight bearing.  There was tenderness to palpation of the spine but no evidence of guarding or muscle spasm.  The Veteran had signs and symptoms due to radiculopathy described as mild, intermittent pain of the right lower extremity and mild numbness of the right lower extremity.  There were no other neurologic abnormalities.  

The Veteran did not have intervertebral disc syndrome and the examiner indicated he did not use assistive devices as a normal mode of locomotion.  The examiner indicated that there was not such functional impairment of the extremities due to the spine that the effective function would be equally served by amputation with prosthesis.  The examiner concluded that the combination of the back and other disabilities made the Veteran unemployable.  He retired from a sedentary job in 2011 as he had difficulty sitting, standing, walking, and using the left hand, and had several falls at work from the left hemiplegia.  The examiner concluded that the Veteran could perform sedentary and light duty with his current back condition but was unemployable due to the stroke and left hemiplegia.  A January 2013 addendum to the examination indicated the claims file was reviewed and no changes in the prior examination report or opinion as to employability was warranted.  

Evaluating the above evidence in light of the rating criteria demonstrates that an increased evaluation is not warranted.  Under the criteria in effect prior to September 23, 2002, the Veteran has been assigned the maximum schedular 60 percent rating for IVDS under DC 5293, along with a 10 percent rating for demonstrable deformity of a vertebral body under DC 5285, for a combined rating of 70 percent.  Furthermore, a separate 10 percent evaluation has been assigned for anterior wedging of T12, effective June 26, 2000.  The only higher ratings available under the criteria in effect prior to September 23, 2002, required residuals of a fracture with cord involvement, bedridden or requiring long leg braces (DC 5285) or unfavorable ankylosis with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) (DC 5286).  The evidence fails to reflect the Veteran meets this criteria.  None of the records indicate cord involvement due to the lumbar spine fracture.  The record also fails to reflect the Veteran is bedridden.  In fact, physician evaluations completed by M.W.A., M.D. (hereinafter Dr. A.) and L.N., M.D. in March 2012 in support of the Veteran's claim for aid and attendance specifically noted that the Veteran was not bedridden.  While the Veteran uses a leg brace, it has never been described as a "long leg brace" and furthermore, the record has clearly indicated this is for his foot drop, not a result of his service-connected lumbar spine fracture residuals with DDD.  In fact, during the March 2011 VA examination the Veteran specifically denied using an assistive device because of his back.  

Similarly, applying the evidence to the revised rating criteria reflects an increased evaluation is not warranted.  In order to obtain a higher 100 percent evaluation under the General Formula for Diseases and Injuries of the Spine, there must be evidence of unfavorable ankylosis of the entire spine.  Here, although he has severely limited motion, he still retains some motion of the spine, ranging anywhere from 10-90 degrees of flexion over the course of the appeal.  In addition, given the lack of incapacitating episodes, there is no basis for a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes.

While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body.  See Mitchell v. Shinseki, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of  'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' may constitute functional loss).  In this case, as noted above, the Veteran has significant low back pain which he treated with medication, muscle relaxers, and physical therapy.  
 
While the Veteran has significant pain, there is nothing in the record that suggests the pain was tantamount to a finding of unfavorable ankylosis.  Significantly, the majority of the records reflect the Veteran retains some, albeit severely limited, motion of the spine.  While the March 2011 VA examination noted there was weakness that causes complete loss of motion, the examiner did not indicate that the result of this impairment was akin to difficulty walking because of limited line of vision, restricted opening of the mouth and chewing, limited breathing due to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the coastal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation or neurologic symptoms from nerve root stretching.  In other words, any additional limitation due to pain does not more nearly approximate a finding of unfavorable ankylosis of the entire spine.  Accordingly, an increased disability rating based solely on pain is not warranted.  38 C.F.R. § 4.45, 4.71a, Diagnostic Codes 5242; DeLuca, 8 Vet. App. at 202.

The Board considered whether an increased evaluation could be granted based upon the granting other separate neurological disability related to the lumbar spine.  As discussed in the Introduction the Veteran is already in receipt of a separate evaluation for the right lower extremity and T12 segment of the thoracic spine and those issues are not on appeal.  Separate evaluations for other neurological disabilities is not warranted at this time as the Veteran has consistently denied the presence of any associated bowel or bladder impairment or other neurological disability that would warrant such an evaluation.  Although Dr. A. indicated in a March 2006 statement that the Veteran had complete loss of bladder sphincter control, the Board finds this evidence is outweighed by the Veteran's repeated statements denying any bladder impairment.  During the July 2008, March 2011, and January 2013 VA examinations the Veteran denied bowel or bladder impairment.  The Veteran is competent to report whether he had leakage, or other bladder impairment.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994)(recognizing that lay testimony is "competent" if it discusses matters that the witness has actually observed or sensed and is within his "personal knowledge").  The Board also finds his statements to be credible as he has been consistent in describing his symptoms.  Furthermore the physician's report noted the presence of an impairment but had completed the form in connection with the claim for aid and attendance and did not specifically attribute the bladder impairment to the lumbar spine disability. 

Similarly, while the record clearly documents a significant neurological disability of the left lower extremity, neither the Veteran nor the record indicate that this is attributable to the service-connected lumbar spine.  Rather, the record as a whole reflects the left lower extremity weakness is a residual of the CVA.  As such, a separate evaluation for this condition is not warranted.

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate.  In the present case, the Board finds the symptoms have been relatively constant throughout the appeal period.  While the March 2011 VA examination noted flexion to 90 degrees, the Board finds this is an outlier as the record as a whole generally demonstrates extremely limited motion of the lumbar spine, most frequently between 10 and 20 degrees.  Furthermore, the same examiner noted the condition was further limited by pain.  Accordingly, the Board will not assign a lower staged rating for this period.   

Extra-Schedular Evaluation

The Board has also considered whether the Veteran's lumbar spine fracture residuals with DDD warrants referral for extra-schedular consideration.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.   If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating.  Id.  

In this case, the evidence does not show that the Veteran's disability presents an exceptional disability picture, insofar as his symptoms are expressly contemplated by the rating schedule.  As outlined above, the Veteran has reported pain, limited motion, numbness, weakness, difficulty with prolonged standing, walking, sitting, and lying down.  Such symptoms are contemplated by the governing regulations and schedular criteria set forth in 38 C.F.R. § 4.45, 4.58, 4.59, 4.71a, Diagnostic Codes 5285-5293 (pre-2003); 5235-5243 (post-2003).  The regulations expressly consider limitation of motion, the effect of incapacitating episodes, and associated neurological symptoms.  The regulations expressly contemplate interference with sitting, standing and weight-bearing.  38 C.F.R. § 4.45 (f).  Furthermore, applicable caselaw mandates the Board consider the overall functional effect of symptoms such as pain, limited motion, fatigability, weakness, incoordination and other symptoms.  See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  In other words, the currently assigned Diagnostic Code adequately contemplates all of the Veteran's symptoms.  As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met and referral for the assignment of an extraschedular disability rating is not warranted.  See Thun, 22 Vet. App. at 115 (noting that "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service connected disability with the established criteria found in the rating schedule for that disability.")

In this case, however, the JMR specifically noted that the Board had not adequately addressed the Veteran's present level of occupational impairment and indicated that the opinions of the effect of the back on occupation were contradictory.  The JMR indicated that because the March 2011 VA examination noted that the "hemiplegia and spine would contribute to the Veteran being unable to maintain gainful employment in that sedentary form of occupation as it would also in pretty much any sedentary form of occupation," (emphasis in JMR), at best, the Veteran experienced some difficulties in the present job that may not be contemplated by the rating schedule, and, at worst, his continued employment in the current position was "untenable."  The JMR indicated clarification was required to determine the present level of occupational impairment.  

On remand, the Veteran was afforded a VA examination in January 2013.  The examiner indicated the Veteran retired from his job in 2011 because he had difficulty standing, walking, and using his left hand and additionally had several falls at work from his left hemiplegia.  The examiner indicated the Veteran could perform sedentary and light duty with the back condition but was unemployable due to the stroke and hemiplegia.  Although this does not expressly clarify the March 2011 opinion, the Board finds there is sufficient evidence to decide the claim.  

According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating, itself, is recognition that industrial capabilities are impaired.

Although section 3.321(b)(1) identifies "marked interference with employment" as a potentially "exceptional or unusual" circumstance which may warrant an extraschedular rating, the mere assertion or evidence that a disability interferes with employment would not in all cases require consideration of section 3.321(b)(1).  See VAOPGCPREC 06-96 (August 16, 1996).  The rating schedule is itself based upon the average impairment of earning capacity due to diseases, and application of the schedule clearly recognizes that the rated disabilities interfere with employment.  38 U.S.C. § 1155.  Id.  Accordingly, the fact that a disability interferes with employment generally would not constitute an "exceptional or unusual" circumstance rendering application of the rating schedule impractical.  Id.  Rather, the provisions of section 3.321(b)(1) would be implicated only where there is evidence that the disability picture presented by a Veteran would, in the average case, produce impairment of earning capacity beyond that reflected in VA's rating schedule or would affect earning capacity in ways not addressed in the schedule.  Id. (emphasis added).  

There is no question the Veteran's lumbar spine fracture residuals with DDD has impacted the Veteran's employment.  He indicated he was not able to stay in his chosen field of pipefitter and plumber because of the spine.  However, he was able to obtain a sedentary office job.  While the JMR suggests the March 2011 VA examination reflects some difficulty in the present job that is not contemplated by the rating schedule, the symptoms the Veteran described during that examination were constant, sharp pain, including pain radiating to the right lower extremity, difficulty when he worked as a pipe fitter and plumber, and limited motion.    As discussed above, limited motion and radiating pain are expressly contemplated by the rating schedule.  Additionally, pain, weakness, and limitations in prolonged sitting, standing and walking.  Significantly, this is expressly contemplated by 38 C.F.R. § 4.45(f) which states that pain on movement is to be considered and "instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations."  (Emphasis added).  Similarly, 38 C.F.R. § 4.59 states that "it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."  The only complaint that was not expressly considered by the rating schedule in March 2011 was the inability to continue working as a pipefitter and plumber due to disc problems.  To the extent to which the Veteran was unable to retain his career of choice, this is not the kind of situation that renders the rating criteria to be inadequate.  38 C.F.R. § 3.321. 

Furthermore, the Veteran never indicated that these limitations resulted in marked interference with employment due to the back disability alone.  See Johnson v. Shinseki, --- Vet. App. ---, 2013 WL 1224810, * 6 (Vet. App. Mar. 27, 2013)(finding that the Board was not required to consider whether referral for extraschedular consideration was warranted on a collective basis.).  In fact, during the March 2011 joints VA examination, the Veteran explained he had not missed any days of work from his back disability.  The February 2012 VA examination noted the central nervous system condition affected the Veteran's ability to work as he missed 6-8 weeks of work a year due to back pain, poor sleep from the CVA and also frequent falls that caused further injuries.  While this examination noted significant time missed from work, it did not specify that it was from the back alone, but rather noted it was a combination of the back, poor sleep from the CVA and frequent falls, which the record generally reflects is a result of the CVA.  Id.
Additionally, a separate March 2011 VA general examination concluded that none of the conditions prevented the Veteran from continuing his present desk job.  

To the extent to which the March 2011 joints VA examination suggested the lumbar spine disability would make it difficult to maintain employment or make his current desk job untenable; this analysis is most appropriate under a claim for a total disability evaluation due to individual unemployability (TDIU).  In Kellar v. Brown, the Court explained that effect of a service connected disability was measured differently for purposes of extraschedular consideration under 3.321 (marked interference with employment) and unemployability under 4.16 (unemployable or unable to secure and follow a substantially gainful occupation).  6 Vet. App. 157 162 (1994).  The Court in Thun indicated that requiring the same showing of interference in obtaining or retaining employment would create an impermissible overlap between the two concepts.  As such, extraschedular consideration may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable." Emphasis in original) Thun, 22 Vet. App. at 111, 117.  

Given the March 2011 VA examination opinion, couched in terms of maintaining gainful employment in any form of sedentary position, and the January 2013 VA examination which noted the Veteran was retired due to complaints arguably related to the service-connected lumbar spine disability, the Board carefully considered whether a claim for TDIU was presently on appeal.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In the present case, however, the RO bifurcated the claim for TDIU and denied this claim in a June 2011 rating decision.  However, in light of the January 2013 VA examination, the claim for TDIU was reraised.  The RO, however, has not reconsidered the issue or considered the evidence of record and additionally, the Board finds that further development is necessary prior to adjudication of this claim.  Accordingly, the claim for TDIU is being remanded below.  See, e.g., Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions).

In sum, to the extent to which the March 2011 VA examination suggested some difficulty in the present job that may not be contemplated by the rating schedule, there is nothing in the evidence of record that elucidates the symptoms or effects of the lumbar spine that resulted in some form of marked interference with employment that was not contemplated by the currently assigned schedular evaluation.  As all of the Veteran's symptoms are contemplated by the rating schedule, referral for extra-schedular consideration is not warranted.   

1151

The Veteran seeks entitlement to benefits under 38 U.S.C.A. § 1151 for a cerebrovascular accident (CVA) and its residuals that were sustained after treatment at VA facilities on May 1, 2, and 3, 2000.  Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal is denied. 

Under 38 U.S.C.A. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected.  38 U.S.C.A. § 1151.  A review of the record reveals that the Veteran submitted his § 1151 claim in June 2000, and thus, the claim must be adjudicated under only the current version of 38 U.S.C.A. § 1151, which requires a showing of fault on the part of VA.  See 69 Fed. Reg. 46,426 (Aug. 3, 2004) (including the codification of 38 C.F.R. § 3.361 which applies to such claims filed on or after October 1, 1997, and revising 38 C.F.R. § 3.358 to state that the section only applied to claims filed before October 1, 1997).  

Under the applicable version of 38 U.S.C.A. § 1151, a disability is a qualifying additional disability, if the additional disability was not the result of the Veteran's willful misconduct, and was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable.  Section 1151 contains two causation elements, the disability must not only have caused by the hospital care or medical treatment but it must also be proximately caused by VA's fault.  See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013).  

In order for the appellant to be eligible for compensation under 38 U.S.C.A. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C.A. § 1151.  If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran; the claim for compensation under 38 U.S.C.A. § 1151 must be denied. 

In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment.  VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b).  

To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability.  Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2).  An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3).  

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent.  38 C.F.R. § 3.361(d)(1).  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  38 C.F.R. § 3.361(d)(1). 

Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  38 C.F.R. § 3.361(d)(2).  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2). 

The present case, however, concerns a claim of a failure to treat or diagnose a disability.  The Court has recognized the "difficulty in assessing the element of causation in cases involving an omission, such as a failure to diagnosis, versus those based on a commission, or an affirmative act, that leads to clearly identifiable injuries."  Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009).  In a claim based on an alleged failure to diagnose, "a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question.  Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation-the failure to diagnose--resulted in additional disability or death."  Roberson, 22 Vet. App. at 364-65.  

In other words, in order to prove a claim under 38 U.S.C.A. § 1151 for failure to diagnose the evidence must show: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered.  Roberson v. Shinseki, 607 F.3d 809, 817 (2010)(upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (2012) (stating that the Board is bound by precedent opinions of the VA's General Counsel).  The Board acknowledges that these elements were delineated by VA's General Counsel as part of the version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997.  However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law.  Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009).  As such, there has been no real change in the standard for these claims concerning a failure to diagnose and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal.

The basic facts are as follows.  On May 1, 2000, at 13:29, the Veteran was seen at the VA outpatient treatment center with complaints of left leg and arm weakness for four days and concerns about a possible CVA.  He described it as a "heavy feeling" left arm and "dragging" left leg and noted a change in his voice.  Objectively, the cranial nerves were intact and mild upper extremity weakness, marked lower extremity weakness, and mild discordination of upper extremity was noted.  The assessment was questionable CVA.  The plan was a computed tomography (CT) scan, restart zocor and he was referred to Dallas for the CT scan.  A fourth plan of creatine (stat) was crossed out.  The exit interview was signed by the Veteran at 15:05.  The CT of the head was completed at 17:12 on May 1 and indicated the ventricles, sulci, and basal cisterns were normal in size.  Brain parenchyma was unremarkable on the noncontrast study.  There was no intracranial hemorrhage.  No extraaxial masses or fluid collections were present.  The visualized orbits were unremarkable.  The visualized paranasal sinuses and mastoid cell systems were clear and calvarium and skull base were preserved.  The impression was unremarkable noncontrast CT.  

The following day, on May 2, 2000, at 8:17 the Veteran again came to the VA outpatient clinic and reported his condition was worse and described increased weakness.  He reported a history of 3-4 days of progressive weakness.  Examination reflected positive left facial weakness.  The extremities were without cyanosis, clubbing or edema.  Pulses were positive distally.  Questionable full effort on motor exam.  Neurological examination reflected the Veteran was alert and oriented and speech appropriate; however, the Veteran reported his voice was "sloshy."  Motor examination was normal on the right.  On the left, initially grip was 5/5 but after few seconds it was normal.  Biceps and triceps had 4/5 motor strength. Hip flexor and knee extensors were 4+/5 and reflexes were brisk and equal throughout.  Plantars had no reaction bilaterally.  Examination of the cranial nerves was significant for left facial weakness.  Patient with history of hypertrygigenudemeia, and chronic low back pain, and gastroesophageal reflux disease.  The physician reviewed the CT of head from the day before and indicated it was unremarkable.  Impression was rule out right CVA with left hemiparesis, refer to Dallas for magnetic resonance imaging (MRI) test with and without contrast stat. and rule out supratentorial etiology.  Another note on this record indicated the MRI was scheduled 7 on the next morning.  The exit interview that was completed at 13:15 indicated the Veteran left without signing out.  At 12:04 on May 2, 2000, the Veteran called and requested to speak to the physician's assistant as soon as possible.  A subsequent note at 1 pm by the physician's assistant indicated he spoke to the Veteran and advised him to keep the 7 am appointment for the MRI and indicated the results should be faxed to the Veteran's private doctor.  

The MRI was performed at 6:35 on May 3, 2000, and reflected focal hypointensity throughout the right pons with hyperintensity noted on axial T2 and proton density images in keeping with acute infarction.  No mass effect was seen.  Focal hypointensity was noted in the left cerebellar hemisphere with matching hyperintensity on the axial T2 images in keeping with gliosis.  The ventricles, sulci, and basal cisterns were normal in size.  The brain parenchyma was otherwise unremarkable on the noncontrast study.  There was no intracranial hemorrhage.  No extraaxial masses or fluid collections were present.  The orbits were remarkable.  Paranasal sinuses were clear and tympanomastoid cavities were clear.  The clavarium and skull base were preserved.  The impression was acute right pontine infarct without mass effect or hemorrhage and focal gliosis noted in the left cerebellar hemisphere.  

On May 3, 2000, the Veteran again went to the VA outpatient clinic complaining of left side weakness with worsening symptoms.  The physician indicated the Veteran's MRI revealed a right pons infarct.  The note indicated the author discussed care with a doctor and will admit.  The diagnosis was right pons infarct (CVA) and the plan was to send the Veteran to the VA Dallas emergency room for admission.  Another note indicated the Veteran declined to go to Dallas and his wife will have him seen at Huguley Memorial Medical Center (hereinafter Huguley).  

Records from Huguley indicated that the Veteran was seen in the emergency room at 14:05 with a complaint of progressive weakness during the past 4-5 days.  He also reported impaired speech and decreased ability to stand and walk.  He indicated he had CT scan that was negative and an MRI showed a stroke.  There was weakness of the left side on examination and the note concluded that the Veteran had left sided weakness and questionable CVA, will admit.  A history and physical dated May 3, 2000, reflected that the Veteran had an episode of slurred speech on April 28.  He indicated he had not slept well the prior two nights and took sleeping pills provided by the VA clinic.  He was seen at the VA clinic Monday complaining of slurred speech, but was told the examination was unremarkable.  He then started dragging his left lower extremity which got worse on the day of admission.  He then came to Huguley and was evaluated and admitted.  The assessment was progressive dysarthria and left hemiparesis in a young patient with risk factors that included hypercholesterolemia, strong family history of premature atherosclerosis, rule out carotid stenosis, and hypercholesterolemia.  The Veteran was admitted for close neurological consultation and monitoring.  The plan also indicated he should be placed on heparin protocol and a magnetic resonance angiography (MRA), 2D echocardiogram, lipid profile and cardiac evaluation were ordered.  

Another history and physical during this hospitalization explained that the Veteran presented with a complaint of several progressive events of dysarthria and progressive weakness of the left side of the body.  He was evaluated more than 2 or 3 times at VA, had a CT scan and MRI of the head, and was initially told he had no deficiency.  Later he was told he had a CVA versus a transient ischemic attack (TIA).  The note indicated that the Veteran came to Huguley for confirmation and elucidation of the problem.  The assessment was right temporoparietal infarction with no history of hypertension.  The recommendation included lifestyle changes and rehabilitation and the prognosis was fair.  The discharge summary reiterated the history of the condition that was provided in the initial emergency room note and indicted the principal diagnosis was right pontine infarct and secondary diagnosis was hypercholesterolemia.  The Veteran was discharged on May 11, 2000.

In the present case, there is no question that the Veteran sustained an additional disability, the CVA and its residuals of left hemiparesis.  Additionally, the Court has explained that in cases of failure to diagnose claims, the injury "must necessarily be the failure to diagnose the condition."  Roberson, 22 Vet. App. at 364.  The pertinent questions are therefore whether a physician exercising a reasonable degree of skill and care ordinarily required of a medical professional would have diagnosed the condition and whether the additional disability would have been avoided had the proper treatment and diagnosis been rendered on May 1-3, 2000.  

Several VA opinions and private opinions concerning this question are in the claims file.  An August 2000 VA outpatient treatment note from a social worker indicated the Veteran had a stroke in May.  The social worker reported the history of events from May 1-3 and indicated that the Veteran now had a brace of the left lower leg and could not do all that he used to with his pipefitting/plumbing job and felt VA was at fault.  He filed a claim for the stroke based on possible fault negligence.  He started back at work and will see how that goes.  He was described as depressed and mentioned marital difficulties and financial difficulties down the line.  The Veteran was upset with VA treatment prior to the stroke and the social worker indicated that she felt he was following the correct procedure to file for possible benefits and needed reassurance that he was doing all he could. 

The Veteran submitted a November 2001 letter from M.W.A., M.D.  Dr. A. indicated that the Veteran was hospitalized in early May 2000 after having several progressive events of dysarthria and progressive weakness of the left side.  Dr. A. opined that if the Veteran had been seen by him earlier, he would definitely had admitted him and considered intravenous anticoagulation with tissue plasminogen activator (TPA).  Dr. A. explained that had such a treatment been provided, it would have been possible he would have recovered completely without any residual deficit.  

The Veteran was afforded a VA examination in August 2002.  The examiner noted the Veteran reported that his stroke was misdiagnosed and necessary treatment was delayed resulting in more severe permanent residuals.  The examiner reviewed the pertinent VA outpatient treatment, Dallas ER and Huguley hospital records as described above.  The examiner reviewed the diagnostic studies that were performed at Huguley, including prothrombin time (pt) and partial thromboplastin time (ptt) tests which were normal, and a normal complete blood count.  The examiner indicated the triglycerides and cholesterol ratio was 5.78, which was too high.  Low density lipoprotein (LDL) and very low density lipoprotein (VLDL) were also too high.  The 2d echocardiogram showed an ejection fraction of 55 to 60 percent; however, there was no evidence of atrial, mitral, aortic, or tricuspid regurgitation.  A subsequent MRI showed an area of hypersensitivity in the right paramedical pons.  Differential could include demyelinization, low grade nonenhancing brain stem glioma or sequelae of previous trauma or vascular insult.  An MRA test performed on 5/3 showed configuration of common carotid arteries and carotid bifurcations bilaterally with no evidence of irregularity or stenosis or obstruction.  Also normal flow to vertebral arteries.  CT scan on May 3 was normal.  The examiner also considered the November 2001 report of Dr. A. that early treatment with anticoagulation medication would have resulted in the Veteran recovering completely without residual deficit.  

After reviewing the records, the examiner concluded that the Dallas VA did not err in making a diagnosis.  The examiner explained that when the Veteran was seen May 1, the CT scan showed no evidence of intracranial hemorrhage and no other remarkable abnormality.  When he returned May 3, the correct diagnosis was made.  The MRI showed focal hyperintensity throughout the right pons in keeping with acute infarction and the Veteran declined to go the Dallas hospital and they went to Huguley.  The private physician report indicated the Veteran came for confirmation and elucidation of problem.  As to the question of whether earlier treatment would have prevented the eventual stroke with residual left hemiparesis, the examiner reiterated that the Veteran was not diagnosed as having a stroke until May 3 and at that time the stroke had occurred and could not be prevented with medication or other treatment.  The treatment suggested by the neurologist that he would have used if he had seen Veteran earlier would have been anticoagulation therapy and the doctors own report failed to demonstrate that there were any blood clots in the heart and the report also states that he had an MRA study that showed no evidence of arterial obstruction.  Therefore, it would appear unlikely that anticoagulation would be effective.  The examiner concluded that the Veteran was not misdiagnosed.  

The Veteran was afforded a VA examination in November 2008.  The examiner reviewed and summarized the pertinent medical records.  The examiner explained that when the Veteran presented on May 1, he already had symptoms for 4 days.  Although the CT scan was normal, arrangements were made because of suspicions of stroke to have an MRI the next day.  That MRI showed the right side pontine infarction as the cause of the left sided hemiparesis.  The examiner opined that it was less likely than not that the Veteran's additional disability was caused by careless, negligence, lack of skill, or error in judgment.  The Veteran was initially seen at an outpatient clinic, treated and evaluated as rapidly as could be done under the circumstances on May 2 and 3, and when the definitive diagnosis was made arrangements were begun to get him admitted but he preferred another hospital.  It seemed reasonable judgment, evaluation and treatment by VA was less likely than not the cause of the additional and neurological deficit and it was not caused by negligence, carelessness, lack of skill, or lack of judgment.  The examiner indicated that it seemed retrospectively that reasonable due diligence was performed in execution of care in this Veteran.  

The Veteran was afforded a VA examination in February 2012 to determine the relationship if any between his stroke and VA's treatment.  The examiner reviewed and summarized the records leading up to and surrounding the treatment of the Veteran's CVA.  The examiner noted that the Veteran was a plumber prior to the stroke but was given an office job at the plumbing business and was planning on quitting soon as he was having more difficulty getting around.  His condition required continuous medication and resulted in muscle weakness of the upper and lower extremities and mild swallowing difficulties.  He did not have respiratory, sleep disturbance, or bowel function impairment.  He did have voiding dysfunction causing leakage; however, this did not require absorbent material.  He also reported hesitancy and slow or weak stream.  

The examiner concluded the CVA residuals of left sided weakness were not at least as likely as not the result of VA treatment on May 1, 2, or 3, 2000, and not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.  The residuals of left side weakness and foot drop were consistent with those sustained from a right pons infarct CVA.  Review of the claims file indicated that VA evaluated and diagnosed the Veteran's symptoms as a TIA after ruling out acute CVA as the negative head CT scan done May 1, 2000, and was therefore treated accordingly.  When symptoms worsened an MRI was performed and diagnosis of stroke was confirmed.  Treatment for the stroke would have been initiated immediately if Veteran agreed to be admitted. While TPA therapy was available at the time, and studies indicated that patients may have minimal deficit and minimal or no disability, the Veteran did not meet treatment guidelines so it was not an option.  The examiner explained it was not uncommon to have TIA and silent strokes prior to an acute CVA.  The Veteran had a normal CT scan on May 1 and normal c-reactive protein on May 2.  Both indicated negative acute CVA.  The MRI on May 3 was the first indication of CVA and the Veteran opted to got another hospital rather than stay at VA.  Initiation of treatment was therefore not delayed by VA and the severity and presence of the residuals of CVA were not the result of delayed treatment on the part of VA.  The stroke treatment was actually initiated on the same day at another facility and the residual of CVA of left side weakness.  The Veteran was referred to HealthSouth for further stroke rehabilitation and did well at rehabilitation and the private neurologist notes indicate the Veteran was able to return to work effective August 2000 with restrictions of not using jackhammer, not driving bobcat tractor, and no digging below 5 feet.  He needed a brace for left foot drop and a cane to walk.  The residuals were consistent with those sustained from right pons infarct CVA.  

Evaluating the evidence in light of the above rating criteria reflects that VA medical professionals acted with reasonable skill and care in treating the Veteran and fail to reflect that the VA physicians should have diagnosed and rendered treatment for a CVA at an earlier time.  In the present case, the Board finds the VA opinions to be the most probative evidence.  See Owens v. Brown, 7 Vet. App. 429 (1995)(holding that it is the Board's responsibility to evaluate the credibility and weight to be given to the evidence of record).  The examiners reviewed the entire record, including the private physician's opinion, considered the history, provided answers responsive to the questions posed and provided a rationale for the opinions rendered.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).

As an initial matter, the Board notes that the VA opinions were phrased in terms of whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the legal criteria to establish causation in a regular 38 U.S.C.A. § 1151 claim.  Compare 38 U.S.C.A. § 1151(outlining the elements for a claim of direct causation) with VAOPGCPREC 05-01 (discussing the elements in a failure to diagnose claim).  The detailed opinions of these examiners provide the answer to the question as to whether a reasonable physician should have diagnosed the condition.  Indeed, in discussing whether VA acted with carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault, the examiners discuss whether VA exercised the degree of care that would be expected of a reasonable health care provider.  See e.g. 38 C.F.R. § 3.361 (d)(1).  

Each of the examiners indicated that in light of the negative objective findings from the CT scan on May 1, 2000, VA acted appropriately and reasonably.  In fact, the August 2002 VA examiner explained the Dallas VA did not err in making a diagnosis.  The November 2008 VA examiner reported that the VA physicians treated the Veteran as rapidly as could be done under the circumstances and concluded that they used reasonable judgment and acted with reasonable due diligence.  The February 2012 VA examiner concluded that given the negative CT scan on May 1 and the normal c-reactive protein on May 2, the VA appropriately treated the Veteran as a TIA.  The February 2012 VA examiner considered the private physician's suggested treatment and explained that the Veteran did not meet the treatment guidelines so TPA therapy was not an option.  The February 2012 VA examiner further noted that once it became apparent the Veteran sustained a CVA, VA began procedures to have the Veteran admitted; however, he chose to seek care through another facility.  

While the Board carefully considered the statement of Dr. A., particularly as he is the physician who treated the Veteran at the private hospital.  Initially, although Dr. A. indicated he would have treated the Veteran in a different manner, he did not express any opinion as to whether VA physicians failed to exercise the degree of skill and care of a reasonable medical professional in diagnosing and treating the condition or provide an opinion as to whether a reasonable physician should have diagnosed the condition.  Significantly, the Huguley records when Dr. A. initially treated the Veteran only indicated that he was seen to "elucidate and confirm" the diagnosis.

Furthermore, even assuming that VA should have diagnosed the CVA earlier, the evidence fails to reflect that the CVA and its residuals would have been avoided had proper diagnosis and treatment been provided.  Indeed, while Dr. A. noted he would have treated with anticoagulants, he opined only that "it would have been possible" that the Veteran would have recovered completely without any residual deficit.  It has been observed that statements from doctors which are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim.  Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the Veteran held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative).  Furthermore, the Board notes that he failed to provide any form of rationale for his opinion.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (the probative value of a medical opinion comes from when there is a factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  The August 2002 VA examiner further explained that as the reports failed to reflect blood clots in the heart and the MRA showed no evidence of arterial obstruction it appeared unlikely that anticoagulation would be effective.  VA's General Counsel has explained that "if the disability would not have been prevented in any event, the physician's failure to diagnose or treat the preexisting condition cannot be viewed as the cause of the disability."  VAOPGCPREC 05-01.  Thus, "absent a basis for concluding that the disability or death probably would have been avoided by proper diagnosis and treatment, it would be wholly speculative to conclude that VA treatment was the cause of the disability or death."  Id.  For these reasons, the opinion of Dr. A. is insufficient to establish that the additional disability would have been avoided by earlier diagnosis and proper treatment.   

The Board also considered the Veteran's statements that VA was negligent in providing care.  The Veteran, however, is not competent to provide an opinion as to the cause of a CVA or whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault.  An opinion as to the cause of a CVA would involve analysis of clinical testing, including CT scans, MRIs, MRAs, echocardiograms, and a knowledge of highly complex neuroanatomy and an understanding of the workings of the brain, vascular system and nervous system.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease).  In expressing an opinion as to cause and negligence, the Veteran is not reporting readily apparent symptoms, nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d at 1377.  Furthermore, in the present case, we are dealing with a question of an alleged misdiagnosis or failure to treat the condition.  The Veteran has not demonstrated he has knowledge of the acceptable medical practices in diagnosing and treating strokes such that his statements would be competent, nor has he indicated that the failure in the standard of care was such that it would be readily apparent to a layperson (e.g. amputating the wrong extremity).  See OGCPREC 05-01 (noting that generally, determinations as to whether a physician's diagnosis, treatment or procedures for arriving at a diagnosis or course of treatment conform to ordinary standards of medical care generally present matters outside the ordinary knowledge of laypersons and therefore must be shown by medical evidence).  Accordingly, the most probative evidence in this case are the VA examinations and opinions which reflect that the VA acted with reasonable care and due diligence in treating the Veteran.

Finally, the Veteran has never argued that VA treated him without informed consent.  38 C.F.R. § 3.361(d)(1)(ii).  Significantly, the treatment in question that was provided on May 1, 2, and 3, was treatment at the outpatient clinic and was not the type of treatment that requested documented signature consent.  38 C.F.R. § 17.32 (d) (noting documentation is required when 1) use of sedation; 2) use of anesthesia or narcotic analgesia; 3) treatment  are considered to produce significant discomfort to the patient 4) treatment has a significant risk of complication or morbidity and 5) treatment requires injection into a joint space or body cavity.)  Accordingly, the Board finds that benefits are not warranted on this basis.

The Board does not doubt the Veteran is sincere in his belief that his stroke was not timely diagnosed and regrets that the Veteran felt VA's medical treatment was unsatisfactory.  While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which benefits under 38 U.S.C.A. § 1151 may be granted.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Aid and Attendance

The Veteran also seeks special monthly compensation benefits based upon the need of aid and attendance of another person.  Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance, and the appeal will be allowed.

Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C.A. § 1114(k) through (s), and 38 C.F.R. §§ 3.350 and 3.352.  Under VA laws and regulations, special monthly pension is payable if the Veteran is in need of regular aid and attendance of another.  38 U.S.C.A. §§ 1114, 1521(d); 38 C.F.R. § 3.350.  Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person.  See 38 C.F.R. § 3.351(b).  The Veteran will be considered in need of aid and attendance if he is (1) blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set for in 38 C.F.R. § 3.352(a). See 38 C.F.R. § 3.351(c). 

Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others.  In making such determinations, consideration is given to such conditions as: inability to dress or undress himself or keep himself ordinarily clean and presentable, frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself through loss of coordination of upper extremities or through weakness, inability to attend to the wants of nature, or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the individual from hazards or dangers incident to his daily environment.  See 38 C.F.R. § 3.352. 

"Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed.  It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made.  The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  38 C.F.R. § 3.352.  Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such that it would require him to be in bed.  They must be based on the actual requirements of personal assistance from others.  38 C.F.R. § 3.352(a). 

The record reflects the Veteran is in receipt of service connection for residuals of a fracture of the lumbar spine with multilevel degenerative disc disease, evaluated as 70 percent disabling, a deformity of a thoracic spine vertebral body, evaluated as 10 percent disabling, radiculopathy of the right leg associated with residuals of a fracture of the lumbar spine, evaluated as 10 percent disabling, residuals of a fracture to the left wrist, evaluated as non compensable, and a laceration to the right forearm, evaluated as noncompensable.  The Veteran also has several non-service connected disabilities, most significantly, the CVA and left hemiparesis.  

In the present case, the evidence is clear that the Veteran is not blind in both eyes, hospitalized or in a nursing home due to incapacity, or mentally incapacitated.  Evaluating the evidence in light of the criteria for service connection, the Board finds that the evidence is at an approximate balance for a finding that the Veteran requires the aid and attendance of another person based upon his service-connected disabilities.  Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. 

In the present case, there is no question that the Veteran requires the aid and attendance of another person.  In fact, March 2006 statement of Dr. A., November 2006 statement of Dr. A., May 2007 letter of Dr. A., January 2010 VA outpatient treatment record, January 2010 statement of L.N., March 2012 statement of Dr. A, and the March 2012 statement of L.N. all indicated the Veteran required the aid or attendance of someone else to perform at least some activities of daily living.  The question is whether the Veteran requires the aid and attendance of another person based upon his service-connected disabilities.  38 U.S.C.A. § 1114 (l).  

There is no question that a significant part of the Veteran's requirement for aid and attendance stems from his non-service connected CVA and left hemiparesis.  Indeed, the March 2006, January 2010, March 2012 statements of Dr. A. and March 2012 statement of Dr. N. indicated the pertinent diagnoses included the CVA, the chronic lumbar spine disability, and radiculopathy.  However, there is evidence that suggests that the lumbar spine disability alone would result in the Veteran requiring the assistance of aid and attendance.  Specifically, a November 2006 statement of Dr. A. indicated that the Veteran required the help of his family, wife, and son for all activities of daily living such as bathing, feeding, dressing, and putting on prosthetic devices.  Dr. A. described this as a permanent disability that would last a lifetime and the diagnosis included chronic low back pain radiating to both lower extremities.  Similarly, a November 2006 treatment record of Dr. A. reflected that the Veteran complained of severe lower back pain, radiating to both lower extremities.  The Veteran indicated that sometimes the pain was so severe that at times he needed assistance of his wife getting off the toilet seat and also need help while showering or bathing.  In a May 2007 letter, Dr. A. related that he treated the Veteran for status post CVA and chronic low back pain since May 2000.  Dr. A. indicated that in his opinion the Veteran required the aid of another person to help him with all of his activities of daily living.  Even if he never had a CVA the Veteran still suffered from severe chronic low back pain and required personal assistance.  Since this was a chronic condition this would most likely last for quite some time if not permanently.  Similarly, a January 2010 VA outpatient treatment record noted that the Veteran was seen to fill out forms for aid and assistance. He reported times when he could not bath or care for himself when his back pain flared up and his wife gave all the help he could get.  

Additionally, an undated statement of spouse indicated her husband always had back problems and some days was confined to bed rest because of severe back or leg pain.  He complained that the weather caused pain and there were days when he was unable to get out of bed due to pain.  He described pain as if he was sliced in half and the legs swell up above the ankle.  She indicated he had gone downhill for past five years and the paralysis further prevented him from doing activities he wished to do.  

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim.  Specifically, the Board could seek further examination as to whether the service-connected disabilities alone resulted in the Veteran needing aid and attendance of another person.  However, in the present case, there is sufficient evidence demonstrating the service-connected lumbar spine fracture residuals, deformity of the thoracic spine vertebral body and right leg radiculopathy on their own caused the Veteran to require help in dressing himself, bathing, feeding, using prosthetic devices, attending to the wants of nature at least some of the time.  As noted, the Veteran need not have all disabling conditions mentioned by 38 C.F.R. § 3.352 and furthermore, the evidence must show only that the Veteran is so helpless as to need regular aid and attendance, not there be a constant need.  38 C.F.R. § 3.352(a).  

Therefore, giving the Veteran the benefit of the doubt, the Board is of the opinion that there is enough evidence to support the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993).  Accordingly, entitlement to special monthly compensation based upon the need for aid and attendance is granted.  See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a).




ORDER

An evaluation in excess of 70 percent for the lumbar spine fracture residuals with degenerative disc disease is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for a cerebrovascular accident and its residuals is denied.

Entitlement to special monthly compensation for aid and attendance is granted. 


REMAND

A review of the record reflects that further development is warranted.  

As discussed above, the January 2013 VA examination of the spine has reraised a claim of entitlement to TDIU as it notes the Veteran retired, in part, due to difficulty standing, and walking, complaints that the Veteran had previously described in connection with his service-connected lumbar spine.  

In this regard, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disability shall be rated totally disabled.  Total disability will be considered to exist when there is presented any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15. 

If the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16. 

In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15.  The question is whether the Veteran's service-connected disorders, without regard to nonservice-connected disorders or advancing age, made him incapable of performing the acts required by employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

The record reflects the Veteran is in receipt of service connection for residuals of a fracture of the lumbar spine with multilevel DDD, evaluated as 70 percent disabling; a deformity of a thoracic spine vertebral body, evaluated as 10 percent disabling; radiculopathy of the right leg, evaluated as 10 percent disabling; residuals of a fracture to the left wrist, evaluated as non compensable; and, a laceration to the right forearm, evaluated as noncompensable.  As the Veteran clearly meets the percentage requirements of 38 C.F.R. § 4.16(a) , the question before the Board is whether the Veteran's service-connected disabilities render him unemployable. 

The record, however, includes contradictory findings on this question.  Specifically, the March 2011 VA examiner concluded that the Veteran's lumbar spine fracture residuals with DDD would result in the Veteran being unable to maintain gainful employment in his prior sedentary form of occupation or "pretty much any sedentary form of occupation."  The January 2013 VA examination concluded that the Veteran could perform sedentary and light duty with the back condition but was unemployable as a result of the CVA.  

It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion.  Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991).  As such, without further clarification, the Board is without medical expertise to determine if the Veteran's service-connected disabilities render him unemployable and a social and industrial survey should be obtained. 

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should schedule the Veteran for a Social and Industrial Survey or similar evaluation to ascertain if the aggregate effect of the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment in light of his work history as a plumber/pipefitter and subsequent job duties answering telephones.  A clear rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

2.  The RO/AMC shall then take such additional development action as it deems proper with respect to the claim.  When the development requested has been completed, the case should again be reviewed on the basis of the additional evidence and readjudicated.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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).




____________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs