Citation Nr: 1324946	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  08-38 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a lung disorder.

2.  Entitlement to an increased evaluation for lumbar spine kyphoscoliosis with chronic sprain and degenerative disc disease (lumbar spine disability) currently evaluated as 20 percent disabling.

3.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart disorder.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	John S. Berry, ESQ


ATTORNEY FOR THE BOARD

K. Millikan, Counsel


INTRODUCTION

The Veteran served on active military duty from September 1978 to June 1992 and in the Air National Guard from March 28, 1995 to July 28, 1995.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Milwaukee, Wisconsin, and Little Rock, Arkansas, Regional Offices (RO) of the Department of Veterans Affairs (VA) and Board remands.  During the pendency of this appeal, the claims file was transferred to the Waco, Texas RO.

The Board denied the claim for an increased evaluation for the lumbar spine disability in an April 2010 decision.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  Based on a November 2010 Joint Motion for Court Remand (Joint Motion), the Court remanded the Board's decision for development in compliance with the Joint Motion.  A letter was sent to the Veteran and his representative on January 2011 in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication.  In a March 2011 letter, the Veteran requested that the claim be readjudicated and that he had no further evidence to submit.  In April 2011, the Board remanded the case for further development. 

Certain records from the claims file have been stored electronically as part of the Virtual VA paperless claims processing system.  The Board has reviewed all electronic and paper records associated with this file, to include a 2009 VA examination relevant to the issues on appeal and a January 2012 VA Form 21-22, appointing Texas Veterans Commission as his representative. 

As noted in the 2010 Board decision, the issue of clear and unmistakable error in a September 1996 rating decision has been raised, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for a heart disorder and for entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The evidence of record demonstrates that there is no current lung disorder.

2.  Service connection for a heart disorder was denied by an unappealed September 1996 rating decision.

3.  Evidence associated with the claims file since the unappealed September 1996 rating decision raises a reasonable possibility of substantiating the claim for entitlement to service connection for a heart disorder.

4.  The Veteran's service-connected lumbar spine disability is manifested by forward flexion in excess of 30 degrees without ankylosis, incapacitating episodes, additional functional loss, or related neurological manifestations.


CONCLUSIONS OF LAW

1.  A lung disorder was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  Evidence submitted to reopen the claim of entitlement to service connection for a heart disorder is new and material, and therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The criteria for an increased evaluation for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the petition to reopen a claim for entitlement to service connection for a heart disorder, because the claim is reopened and remanded for further development, the VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

Notice requirements apply to all five elements of a service connection claim, including:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  For increased rating claims, the required notice is generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).   Regarding the lung disorder, a fully compliant March 2005 letter was sent to the Veteran prior to initial adjudication of the claim in July 2005.  Regarding the service-connected back disability, a fully compliant December 2006 letter was sent to the Veteran prior to initial adjudication of the claim in March 2007.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs), VA medical records, and identified private medical records have been obtained.   Although the Veteran's National Guard records are not associated with the claims file, negative responses from the appropriate repositories have been associated with the claims file.  Regarding the service connection claim, VA did not provide the Veteran with a medical examination but none is required.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold).  Here, no examination is necessary as the evidence of record demonstrates there is no lung disorder or lung symptoms during service. 

Regarding the increased evaluation claim, VA provided the Veteran with an adequate medical examination in September 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c).  The examination is adequate because it addresses the relevant diagnostic criteria, including the provisions related to additional functional loss, contains a thorough examination of the Veteran, and is based upon a review of the claims file.  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Finally, the Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  The service connection claim and claim to reopen were remanded by the Board in April 2010.  That remand requested that the RO issue statements of the case for the service connection claim and the claim to reopen.  Statements of the case were issued in October 2010.  Pursuant to the JMR, the increased evaluation claim was remanded by the Board in April 2011.  That remand requested that an examination that addressed functional impairment be conducted.  Such an examination was provided in September 2012.  Accordingly, the Board finds that there has been substantial compliance with its previous remands and it may proceed to adjudication of this appeal. 


Service connection

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997).  There is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

In various statements of record, the Veteran reported difficulty breathing with any physical exertion and that he had emphysema.

Here, the Veteran's STRs are silent for any complaints, treatment, or diagnoses of lung disorders.  In an April 1978 service entrance Report of Medical History (RMH), the Veteran reported no asthma, shortness of breath, or pain or pressure in the chest.  In an April 1978 service entrance Report of Medical Examination (RME), there was normal lungs and chest.  In a December 1981 RMH, the Veteran reported no asthma, shortness of breath, or pain or pressure in the chest. A December 1981 RME noted normal lungs and chest.  A chest x-ray was normal.  An August 1982 chest x-ray noted no significant abnormalities.  A June 1985 RME noted normal lungs and chest.  In a March 1986 STR, the assessment was upper respiratory infection.  Upon examination, the lungs were clear.  An August 1987 chest x-ray showed no significant abnormality.  The reason the x-ray was obtained was that the Veteran was a smoker.  An August 1990 RME noted normal lungs and chest.  An August 1990 physical noted the Veteran smoked 1.5 packs of cigarettes per day.  In an April 1992 STR, the Veteran reported a 22 pack per year smoking history.  A chest x-ray noted lungs were free from active pulmonary disease.  

An April 1994 VA examination found a normal respiratory system.  A January 1995 VA treatment record noted a normal chest x-ray.  An October 1995 private record contained a chest x-ray that was normal.  In an October 1995 private record, the pulmonary examination was stable.  The Veteran denied chest pain and dyspnea.  A chest x-ray ordered the previous day was negative.  Upon examination, the lungs were clear.  An October 1995 VA examination was conducted.  The Veteran reported smoking one pack per day.  Upon examination of the respiratory system, breath sounds were clear and there were no rales or rhonchi.  In a January 1996 VA record, the Veteran reported a cough.  Upon examination, the chest was clear.  In a March 1996 VA examination, the Veteran reported smoking one pack of cigarettes per day.  He gave no history of shortness of breath.  Upon examination, the chest sounds were clear.  An x-ray done one month prior was normal.  

A February 2003 private echocardiogram report noted normal pulmonary pressures.  In a March 2003 private record, the clinical history noted shortness of breath.  In an October 2004 private record, the chest x-ray was negative.  In a November 2004 private record, there was a 40 pack a year smoking history.  On examination, there were clear lungs.  An August 2005 private chest x-ray report noted no acute process.  A December 2009 VA examination was conducted.  The Veteran denied a history of cough or wheeze, hemoptysis, sleep apnea symptoms, or chest pain.  The pulmonary system was normal upon inspection and palpation.  The bilateral chest was normal to percussion and auscultation.

The Board finds that the evidence of record does not support a finding of service connection for a lung disorder.  There is not a current disability.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  The Veteran provided competent and credible lay testimony of difficulty breathing, he See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge).  Additionally, the Board finds his statements credible.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  But the Veteran is not competent to provide a diagnosis of emphysema as he does not have any specialized medical specialized education, training, or experience as would be required to diagnose such a complex pulmonary disorder.  Furthermore, for that same reason, he is not competent to state that any difficulty breathing is due to a lung disorder.  See 38 C.F.R. § 3.159(a)(2).

Additionally, his testimony is outweighed by the medical findings of normal lungs and chest throughout service and thereafter.  Such findings are based on medical training and experience and full examinations of the Veteran.  See e.g., Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  Accordingly, the Board finds that there is no lung disorder at any time during the appeal period and service cannot be granted.


Claim to reopen

In a September 1996 decision, the RO denied service connection for a heart disorder because the evidence did not show a current heart disability.  The Veteran did not appeal that decision.  The September 1996 decision is thus final based on the evidence then of record.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (2013).  

In April 2003, the Veteran requested to reopen his claim of entitlement to service connection for a heart disorder.  In an August 2003 rating letter, the RO found that the claim was not reopened because there was no current chronic heart disorder.  In January 2004, March 2005, November 2005, April 2006, the Veteran filed statements that the RO interpreted as claims to reopen regarding the heart disorder; in the 2010 remand, the Board previously determined these statements were notices of disagreement to the initial August 2003 denial.  Thus, the issue remained on appeal since the 2003 rating action.  In multiple rating decisions, the RO found that the claim was not reopened because there was no current chronic heart disorder.  

Although a decision is final, a claim will be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108.  New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  "New" evidence means existing evidence not previously submitted to VA.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  

In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination).  Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Shade, 24 Vet. App. at 117.  Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  

Additionally, where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156(c)(1).  

If new and material evidence is presented, the Board shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108.  But if the RO did not reopen the claim and consider it on a direct basis, then the Board may not consider the claim on the merits unless the Veteran has waived RO consideration or the Veteran would not be prejudiced by such consideration.  Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of RO consideration of the merits of a claim).

In this case, the RO determined that new and material evidence was not presented to reopen the Veteran's claim for entitlement to service connection for a heart disorder.  Such a determination, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted).  Because the September 1996 decision is the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  The Board notes that no new and material evidence was submitted within one year of the 1996 rating decision; no submissions were received by VA until 2003.  Additionally, no new relevant STRs have been received after the 1996 rating decision.  38 C.F.R. § 3.156(b), (c)(1).  

Evidence of record at the time of the September 1996 decision includes the following:  1) the Veteran's STRs; 2) VA examinations dated in 1994, 1995, 1996; and 3) VA treatment records.  The STRs indicated notations of a heart murmur, mitral valve prolapse, and mitral regurgitation.

Evidence submitted after the September 1996 decision includes the following:  1) private medical records; 2) the Veteran's lay statements; and 3) a December 2009 VA examination.  The private records include a stress test that provided evidence of a myocardial infarction.

The Board finds that new and material evidence has been presented.  The evidence, including the private records, is new because it was not previously submitted to VA.  The evidence is also material because it relates to unestablished facts necessary to establish the claim - the presence of a current heart disability.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167 (noting that service connection requires a present disability, in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service).  Additionally, the evidence is neither cumulative nor redundant as it indicates that there may be a disorder, as opposed to heart abnormalities without an underlying condition.  See 38 C.F.R. § 3.156(a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran's claim is reopened.

New and material evidence having been received, the claim for entitlement to service connection for a heart disorder is reopened.

Increased evaluation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart, 21 Vet. App. at 509.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Furthermore, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

The Veteran's lumbar spine disability is currently assigned a 20 percent evaluation, which contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (2012).

For lumbar spine disabilities, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula.  Normal thoracolumbar spine forward flexion 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.  38 C.F.R. § 4.71a, General Rating Formula, Note (2); 38 C.F.R. § 4.71a, Plate V (2012).

Under the rating criteria for intervertebral disc syndrome, a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013).  An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, General Rating Formula, Note (1).

Also under the General Rating Formula for, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula, Note (1).  

Regarding the general rating formula criteria, the evidence of record indicates that an increased evaluation is not warranted.  An April 2005 VA examination notes forward flexion to 95 degrees, extension to 35 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 25 degrees.  There was pain at the end ranges of motion.  An April 2006 VA examination notes forward flexion to 90 degrees, with pain at 70 degrees, extension to 5 degrees with pain at 5 degrees, bilateral lateral flexion to 30 degrees with pain at 30 degrees, and bilateral rotation to 50 degrees with pain at 50 degrees.  A March 2007 VA examination notes forward flexion to 65 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 25 degrees, and bilateral rotation to 45 degrees, all with pain.  A September 2012 VA examination notes forward flexion to 75 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 20 degrees, all with pain at the end range of motion.  Thus, even considering where pain begins, the evidence does not show forward flexion to less than 30 degrees, as it shows flexion to 65, 70, 75, and 95 degrees.  The evidence also does not show favorable or unfavorable ankylosis because there is limited range of motion, but not fixation of the lumbar spine.  An increased evaluation is not warranted.  38 C.F.R. § 4.71a, General Rating Formula; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).

Further consideration has been given to whether there is any other additional functional loss not contemplated in the current 20 percent rating.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206.  Factors involved in evaluating and rating disabilities of the joints include:  weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement.  38 C.F.R. § 4.45 (2012).  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.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes, such as more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.  The intent of the Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Painful motion, however, is not deemed limited motion; rather, pain must cause an additional functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 39-44 (2011).

At the April 2005 VA examination, the Veteran reported daily low back pain that was 2/10.  He stated the pain may come on at any time when he was sleeping, sitting, driving, or working.  He was able to work as a production coordinator, but tried not to lift anything heavier than 20 to 25 pounds.  There was no lumbar spine tenderness, weakness, or muscle spasm.  Upon repetitive movement, there was no increase in the loss of range of motion due to pain, weakness, or fatigue.  There was a normal gait, no assistive devices and the pain did not interfere with his activities of daily living or occupation.  He reported increased pain with flare-ups.  At the April 2006 VA examination, the Veteran reported frequent flares with and without activity.  The flare-ups occurred upon sleeping, sitting, driving, and other activities, and caused no additional weakness or restricted range of motion.  During painful flares at work, he worked through the pain with an ease of symptoms over a six to eight hour time period.  He did not use a cane or brace, but did notice difficulty on occasion with standing from a squatting position.  Examination showed spasm without tenderness, a normal gait, no weakness, fatigability, discoordination, or additional restricted range of motion or functional impairment upon repetitive movement.  

In March 2006 VA record, the Veteran reported pain.  In November 2006 lay statement, he asserted increased pain.  He stated he was unable to sit or stand for prolonged periods of time, could not lift heavy weights, and bending was painful.  He stated he was laid off due to back pain.  At the March 2007 VA examination, the Veteran reported back pain worsened with lifting.  He takes pain pills and muscle relaxers on a daily basis and had occasional flares with increased pain and stiffness.  On examination, there was a normal gait, with significant kyphosisis and right scoliosis.  With repetitive forward flexion, there was no additional loss of motion, but increased pain.  The Veteran reported additional pain that limits his functional ability during flare-ups during which time he takes additional medication and goes on to work.  The examiner noted he did not demonstrate additional loss during testing.  The examiner found the Veteran's functional impairment to be bending and lifting.  The effect on his occupation was that he is able to carry on in a medium strenuous type job situation as long as he does not have to bend or lift significantly.  There was painful motion and marked spasm, but no tenderness.  The Veteran asserted in a July 2008 lay statement that he had to get another job due to back pain. 

At the December 2009 VA examination, the Veteran reported stiffness, limited motion, and back pain.  He reported fatigue, weakness, decreased motion, stiffness, spasms, and pain.  He denied assistive devices for walking or limitations on walking.  There were flare-ups, related to lifting and constant positions, and sometimes for no reasons.  The flare-ups occurred every other day and lasted 1 to 2 days.  During flare-ups, he had increased lower back pain causing pain with normal ambulation.  Examination indicated 4/5 muscle strength of the lower extremities without muscle atrophy.  At the September 2012 VA examination, the Veteran reported his back pain was worsening, that his back was always stiff and sore, and that it takes a couple of hours to move properly.  He was taking medications and had steroid injections about one year prior.  He did not use assistive devices.  He rated his pain as constantly 4/10, but 6/10 in the morning.  He stated the pain interfered with his sleep.  Upon examination, there was no additional limitation in range of motion upon repetition.  The examiner found that the Veteran's functional loss or impairment included pain on movement, but did not include weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy, instability, or interference with sitting, standing, and/or weight bearing.  There was tenderness of the thoracolumbar paraspinal muscle and guarding or muscle spasm that caused an abnormal gait.  There was 5/5 muscle strength without muscle atrophy.  The back condition impacted the Veteran's ability to work, as he was on VA disability and was not working at the moment. 

The Veteran has provided competent and credible evidence of pain and other functional limitations.  But the examiners consistently found no additional loss of range of motion or other functional limitations upon repetitive motion.  Flare-ups caused increased pain and increased difficulty with ambulation, but the Veteran did not require assistive devices.  See Mitchell, 25 Vet. App. at 39-44.  Additionally, the examiners noted that the Veteran had retained his strength without muscle atrophy, and although there was tenderness and spasm, there was no excess fatigability, incoordination, swelling, weakness, or instability.  The Board finds that on the whole, the evidence does not demonstrate additional functional loss not contemplated in the 20 percent rating and that an increased evaluation on this basis is not warranted.  

An increased evaluation under other potentially applicable diagnostic codes has been considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  But an evaluation in excess of 20 percent under the diagnostic code for intervertebral disc syndrome is not warranted.  At the April 2005 VA examination, it was noted that there were no incapacitating episodes within the last 12 months.  At the April 2006 VA exemption, the examiner noted the Veteran had not been incapacitated in the last 12 months.  At the March 2007 VA examination, it as noted there had been no incapacitating episodes in the last year.  At the December 2009 VA examination, the Veteran denied incapacitating episodes.  At the September 2012 VA examination, the examiner found there was IVDS of the spine, but no incapacitating episodes.  The evidence of record, therefore, does not demonstrate any incapacitating episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An increased evaluation on this basis is not warranted.  

The Board has also considered an increased evaluation for traumatic or degenerative arthritis of the spine.  But as noted above, the Veteran is currently assigned a 20 percent evaluation; no higher evaluation is permitted under these diagnostic codes.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  

Consideration has also been provided regarding whether a separate rating is required for any neurological component of the Veteran's lumbar spine disability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1).  At the April 2005 VA examination, the Veteran denied bowel and bladder incontinence.  Examination showed equal knee and ankle jerks, bilaterally.  The diagnoses included degenerative disc disease.  A March 2006 VA CT scan noted mild disc bulges at each lumbar spine disc level.  In March 2006 VA records, the Veteran reported pain that radiated down his bilateral legs and weakness of both legs, but denied bowel or bladder problems.  Upon examination, the Veteran ambulated without assistance and had symmetric reflexes.  At the April 2006 VA examination, the Veteran denied radiculopathy.  Straight leg raising was negative bilaterally.  Upon examination, there was normal sensation and reflexes of the lower extremities.  At the March 2007 VA examination, the Veteran denied bowel and bladder problems. He reported occasional numbness in all four extremities but very occasional and intermittent.  The examiner noted a normal neurological examination.  At the December 2009 VA examination, the Veteran denied bowel and bladder difficulty, numbness, paresthesias, but reported lower extremity weakness.  Examination indicated normal reflexes and negative straight leg raising.  At the September 2012 VA examination, there were normal reflexes and sensation and negative straight leg raise testing.  The examiner noted there was no radiculopathy or any other neurological abnormalities.  

The Board notes that the Veteran is competent to report pain and other lay observable symptoms such as numbness and radiating pain.  See Washington, 19 Vet. App. at 368.  Additionally, the Board finds his statements credible.  See Caluza, 7 Vet. App. at 511.  But they are outweighed by the examination findings of normal sensation, normal reflexes, and the examiners' opinions that there are no neurological abnormalities.  The Board accords these opinions significant probative value because such opinions are based on detailed findings, clinical experience, and a full examination of the Veteran.  Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by a VA examiner, without more, does not automatically render the opinion persuasive, and conversely a private medical opinion may not be discounted solely for a lack of claims file review, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion).  Accordingly, a separate evaluation for neurological symptoms of the lumbar spine disability is not warranted.

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluations in this case are not inadequate.  A rating in excess of 20 percent is provided for certain manifestations of the service-connected lumbar spine disability but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's lumbar spine disability, as the criteria assess range of motion, additional functional loss, and neurological abnormalities.  Moreover, the evidence does not demonstrate other related factors.  The Veteran has not required hospitalization due to service-connected lumbar spine disability.  Additionally, marked interference of employment has not been shown: at the 2005, 2006, and 2007, VA examinations, the Veteran stated that the disorder didn't interfere with his occupation or he worked through the pain.  At the 2012 VA examination, the examiner noted that the condition impacted his ability to work and listed restrictions such as requiring special accommodation to avoid lifting, pulling, or pushing more than 25 pounds, sitting for prolonged periods of time, or walking long distances.  Further, the Veteran's non-service-connected pension is based upon his heart disorder.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.

After review of the evidence, the evidence of record does not warrant a rating in excess of 20 percent for the lumbar spine disability at any time during the period pertinent to this appeal.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); see also Fenderson, 12 Vet. App. at 126.  Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for a lung disorder is denied.

New and material evidence having been received, the claim for entitlement to service connection for a heart disorder is reopened; the claim is granted to this extent only.

An increased evaluation for the service-connected lumbar spine disability is denied.



REMAND

Regarding the claim for service connection for a heart disorder, remand is required to obtain an examination.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86.  Here there are in-service diagnoses of heart murmur, mitral valve prolapse, and mitral regurgitation, and near-continuous post-service diagnoses of heart murmur, mitral valve prolapse, mitral regurgitation, and possible myocardial infarction.  It isn't clear whether these diagnoses are heart disabilities or mere abnormal findings; the Board may not make this determination on its own.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the BVA may only consider independent medical evidence in supporting its findings).  Thus, remand is required for an examination and etiological opinions.

Regarding the claim for TDIU, remand is required for an addendum opinion and because the issue is intertwined with the other issue being remanded.  If VA provides the veteran with an examination, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  A mere medical conclusion provided by an examiner is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion.  Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).  Two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Here, the issue of entitlement to service connection for a heart disorder would impact the TDIU issue as a grant of service connection would affect the Veteran's potential entitlement to schedular TDIU.  Additionally, VA opinions regarding unemployability were obtained in 2012; none of the opinions addressed all of the Veteran's service-connected disabilities in concert.  Accordingly, remand is required. 

Finally, while on remand, the RO must obtain or attempt to obtain any new, relevant VA and private medical records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1), (2).

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, the AMC must make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file by the AMC.  

2.  Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  

3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any heart disorder.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must first provide an opinion, in light of the examination findings and the service and post-service evidence of record, whether the Veteran has a current heart disability.  The examiner must provide an explanation regarding whether heart murmur, mitral valve prolapse, and mitral regurgitation, are mere symptoms or findings or disabilities for VA purposes. 

Next, the examiner must provide an opinion whether any diagnosed heart disability, heart murmur, mitral valve prolapse, or mitral regurgitation, is a congenital disease or congenital defect.  If the examiner finds any disability to be a congenital disease, the examiner must provide an opinion regarding whether it was aggravated by service; that it progressed during service at a greater rate than normally expected according to accepted medical authority. If the examiner finds any disability is a congenital defect, the examiner must provide an opinion whether it was subject to a superimposed disease or injury due to service.

If there are diagnosed heart disabilities that are neither a congenital disease or defect, then the examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the heart disability was caused or aggravated by the Veteran's military service.  The examiner must also specifically address the relevant STRs. 

4.  After the heart examination is provided and a determination made regarding whether the heart disorder is service-connected, provide the Veteran an appropriate examination to determine the impact of his service-connected disabilities on his employability.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file must be made available to and reviewed by the examiner.  The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history.  Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders.  A full explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a full explanation provided for that conclusion.  

5.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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).




______________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs