Citation Nr: 1325608 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 05-35 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative changes of the lumbar spine. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to November 1979 and from October 1980 to January 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2008, June 2010, and October 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's degenerative changes of the lumbar spine are manifested by pain and limitation of motion without ankylosis, incapacitating episodes requiring bedrest prescribed by a physician, or neurological impairment. 2. The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative changes of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, 4.120, 4.124a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Entitlement to service connection for posttraumatic arthritis of the lower back was granted in an August 1990 rating decision. An initial 10 percent evaluation was assigned effective February 1, 1990. A 20 percent evaluation was awarded in an August 1996 rating decision effective May 10, 1996. A 40 percent evaluation was awarded in a November 2002 rating decision effective April 19, 2001. The July 2004 rating decision on appeal continued the 40 percent evaluation for the service-connected back disability, now characterized as degenerative changes of the lumbar spine. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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 v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's low back disability is currently rated as 40 percent disabling under Diagnostic Code 5242 (for rating degenerative arthritis of the spine) and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Thus, in order to warrant an increased evaluation under the general rating formula, the Veteran's low back disability must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. With respect to limitation of motion, the Board finds that a rating in excess of 40 percent is not warranted for the service-connected lumbar condition. There is no medical or lay evidence of ankylosis during the claims period, and VA examinations conducted in July 2004, October 2009, July 2010, and September 2011 clearly establish that the Veteran has maintained some useful motion of his lumbar spine. Range of motion was most restricted during the September 2011 VA examination when thoracolumbar flexion was limited to 30 degrees with a combined range of motion to 75 degrees. Although the Veteran's range of motion was restricted at the examination, it is clear that he has retained some use of his thoracolumbar spine. VA is required to consider functional impairment when evaluating disabilities based on limitation of motion, but the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). There are no objective findings of ankylosis at any time during the claims period. The Veteran was able to perform range of motion measurements with repetitions during all the VA examinations and he has not reported that his lumbar spine is fixed in any single position. Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis. The Board finds that the competent evidence of record establishes that the Veteran's thoracolumbar spine is not ankylosed and a rating in excess of 40 percent is not warranted based on limitation of motion. The Board has also considered whether a separate disability rating is warranted for neurological impairment associated with the service-connected lumbar spine disability. The general rating formula for rating diseases and injuries of the spine provides for a separate rating for any objective neurological abnormalities associated with a service-connected back condition. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Veteran manifests some symptoms of neurological impairment of the lower extremities, but the preponderance of the evidence is against a finding that these symptoms are due to his service-connected back disability. Upon VA examinations in July 2004 and July 2010, the Veteran complained of occasional numbness and weakness in his legs. He attributed these symptoms to his service-connected back condition. Neurological examination of the lower extremities was normal at the July 2004 VA examination, but the July 2010 examiner observed decreased sensation and vibratory sense from the knees to the ankles. The Veteran also had absent patellar and Achilles tendon reflexes during an October 2009 VA examination. Similar findings were demonstrated at the most recent VA examination in September 2011; ankle reflexes were absent and sensation in the bilateral ankles, feet, and toes were reduced. The Veteran was also diagnosed with mild peripheral neuropathy in March 2004 at the VAMC and a November 2012 nerve conduction study verified the presence of sensory motor polyneuropathy in the lower extremities. Although the record contains subjective and objective evidence of neurological impairment of the lower extremities, the preponderance of the evidence is against a finding that these symptoms are due to the service-connected low back disability. In a November 2012 and February 2013 addendum medical opinions, the September 2011 VA examiner explicitly found that the Veteran's decreased sensation, reflexes, numbness, and peripheral neuropathy of the legs was not due to degenerative changes of the lumbar spine. As these negative opinions are clearly supported by a medical explanation of the supporting data, the Board finds them to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiner explained that the pattern of the Veteran's neuropathy was more consistent with a stocking effect rather than a radicular condition. She supported this finding by noting that "the SLR [straight leg raising] test was negative and the pain did not radiate." The examiner also supported her conclusion by noting that the November 2012 nerve conduction study was entirely negative for evidence of radiculopathy due to the low back, and imaging scans (such as the 2009 lumbar CT) did not demonstrate any impingement of the spinal cord. Further, the September 2011 VA examiner provided alternate etiologies for the Veteran's symptoms of pain and numbness, including his nonservice-connected disabilities of diabetes, hip arthritis, and chronic venous insufficiency of the lower extremities in addition to age, a long history of smoking, and low B12 and Vitamin D levels. The examiner further supported her conclusions by noting that VA treatment records showed that no VA provider had stated that the Veteran had radiculopathy symptoms. However she noted that VA providers had frequently remarked upon low B12 levels which would account for the Veteran's symptoms. This conclusion was reiterated by an additional February 2013 addendum wherein she noted that "most likely" the Veteran's complaints were a result of low B12 levels which were "most likely chronically low for sometime" due to the Veteran's history of alcoholism. The examiner also explained in the 2012 addendum that the VA treatment records showed that the Veteran had a 35 year history of smoking which can cause peripheral vascular disease. The opinion also explained that age is commonly known in the medical community to lead to decreased strength in the lower extremities. Likewise, weakened quadriceps can be a result of inactivity. Further, in March 2004 at the VAMC, the Veteran was specifically found to have no definite evidence of radiculopathy. The Board has considered the application of Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). IVDS can be rated under Diagnostic Code 5243 or under the general rating formula for spine disorder. Diagnostic Code 5243 provides for a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 provides that 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, Diagnostic Code 5243. In this case, the evidence does not establish, and the Veteran does not allege, that his low back disability results in incapacitating episodes requiring bedrest prescribed by a physician. He denied experiencing any prescribed periods of bedrest at the July 2004 VA examination, and the 2011 VA examiner determined that the Veteran does not have IVDS of the thoracolumbar spine. Treatment records from the Veteran's VA and private health care providers are negative for prescribed bedrest. Thus, the preponderance of the evidence is against a finding that the Veteran has clearly experienced incapacitating episodes of the nature contemplated by a 60 percent evaluation. For these reasons, an increased rating is not warranted under the criteria pertaining to IVDS at any time during the claims period. In sum, the Veteran's thoracolumbar spine is appropriately rated as 40 percent disabling throughout the claims period. The Board has considered the Veteran's statements linking his peripheral neuropathy and neurological impairment of the lower extremities to his low back condition. Under certain circumstances, the Veteran as a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the etiology of neurological impairment is not a simple medical condition, because it cannot be perceived through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Personal knowledge is that which is perceived through the use of the senses.) Rather, its presence is confirmed by diagnostic testing like EMG/NCV testing and MRI and CT scans. For these reasons, the Board determines that the origins of the Veteran's complaints of numbness and weakness are not simple medical conditions, the etiology of which the Veteran as a lay person is competent to identify. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Veteran is competent to report observable symptoms, such as numbness and pain in his legs, but his opinion as to the cause of the symptoms has little to no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, the weight of the evidence of record is against a finding that the Veteran has neurological impairment due to service-connected degenerative changes of the lumbar spine. The Board has considered whether there is any other schedular basis for granting a higher rating for the Veteran's lumbar spine disability, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of an increased schedular rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's degenerative changes of the lumbar spine manifest symptoms such as pain and limited motion without ankylosis or neurological impairment. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the service-connected disability and referral for consideration of extraschedular rating is not warranted. TDIU Claim The Veteran contends that TDIU is warranted as he is unemployable due to his service-connected low back and knee disabilities. TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude a veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for degenerative changes of the lumbar spine, rated as 40 percent disabling, and various manifestations of right and left knee disabilities and a painful scar of the left thumb with a combined disability evaluation of 70 percent. In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU. The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After review of the evidence, the Board finds that the Veteran is unemployable due to service-connected disabilities. He last worked full time in 1996 as a corrections officer and information from the Veteran's former employer establishes that he left work due to an unspecified long-term disability. On a September 2011 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that he finished four years of high school, but had no other education or special training. The record also contains a competent medical opinion in support of the claim. In September 2011, a VA examiner opined that the Veteran could not sit, stand, or walk for long periods or perform any heavy lifting due to his back disability. The VA examiner also found that the Veteran was permanently unable to perform any gainful employment due to his back and knee conditions, to include sedentary employment, which would still be affected by the Veteran's back and knee pain and physical limitations. Although the record contains evidence that the Veteran has several severe nonservice-connected disabilities, to include chronic venous insufficiency, obesity, asthma, and chronic atrial fibrillation, the Board finds that the evidence is at least in equipoise that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his limited education and occupational experience due to his service-connected disabilities. The claim for TDIU is granted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA has substantially satisfied the duties to notify and assist with respect to the claim for entitlement to TDIU. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. Regarding the claim for an increased rating for degenerative changes of the lumbar spine, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a September 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the September 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in a February 2013 supplemental statement of the case (SSOC). Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, records from the Social Security Administration (SSA) and private medical records. Additionally, the Veteran was provided a proper VA examination in September 2011 with addendum medical opinions issued in November 2012 and February 2013. The Board also finds that VA has complied with the August 2008, June 2010, and October 2012 remand orders of the Board. In response to the Board's remands, the Veteran was contacted in a September 2008 letter and informed of VA duties to notify and assist him in developing the claim on appeal. The September 2008 letter also asked that the Veteran identify all private and VA health care providers who have treated his low back disability. No response to this request was received. VA obtained the Veteran's most recent VA treatment records and conducted an examination of the Veteran's spine in September 2011 with November 2012 and February 2013 addendum opinions. The case was then readjudicated in a February 2013 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 40 percent for degenerative changes of the lumbar spine is denied. Entitlement to TDIU is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs