Citation Nr: 1326360 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-21 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a separate rating for residuals of degenerative changes of the thoracic spine, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2009, the Board denied an increased rating for a thoracic spine disability; the Veteran appealed. In February 2011, the United States Court of Appeals for Veterans Claims (Court) vacated that decision and remanded it back to the Board. Per the Court's order, in October 2011, the Board remanded this matter for consideration of an extraschedular evaluation. The report from the Director of Compensation and Pension Service has been obtained and associated with the claims file. The Director determined that an extraschedular rating for the orthopedic aspect of the Veteran's thoracic spine disability should not be awarded and the Board subsequently denied an evaluation higher than 20 percent for degenerative changes of the thoracic spine in a decision in dated in February 2013. In the same decision, however, the Board remanded the issue of entitlement to a separate rating for residuals of degenerative changes of the thoracic spine, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. Following the issuance of the supplemental statement of the case in April 2013, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The issue entitlement to service connection for a lumbar spine disability has been raised by the record, 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. FINDINGS OF FACT The service connected degenerative changes of the thoracic spine disability is not manifested by objective neurological abnormalities, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities. CONCLUSION OF LAW The Veteran is not entitled to a separate rating for residuals of degenerative changes of the thoracic spine, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242, General Rating Formula for Rating Diseases and Injuries of the Spine, Note 1(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for an increased rating, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letters, dated in February and March 2006. The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. To the extent that specific VCAA notice regarding rating objective neurological abnormalities of the thoracic spine came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statements of the case, dated in October 2007, December 2012, and April 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in February 2006, December 2009, and March 2013. In February 2013, the Board remanded the case to afford the Veteran a VA examination and to obtain medical opinions as to entitlement to a separate rating for neurological residuals of degenerative changes of the thoracic spine, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities. VA provided the Veteran a VA examination in March 2013 and the examiner has issued a report. The examiner's review included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. In the report, the examiner sufficiently identified the extent of the service-connected disability and its symptoms and provided an opinion supported by a rationale on the relationship of the any neurological manifestations and their relationship to the Veteran's service connected thoracic spin disability. After review of the report, the Board finds the VA examination report in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. See also 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Entitlement to a Separate Rating for Neurological Residuals of Degenerative Changes of the Thoracic Spine, to Include Bladder and Bowel Impairment, and Radiculopathy to the Upper and Lower Extremities. . Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is service connected for degenerative changes for the thoracic spine and has asserted that the disability warrants a rating higher than the current rating of 20 percent. The RO rated his disability under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under this diagnostic code, lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula provides ratings based upon range of motion and specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. The Board denied the Veteran's entitlement to a higher rating under the General Formula in February 2013. The Veteran, however, also asserts that he has developed neurological abnormalities resulting from his service-connected thoracic spine disability. Note (1) under the General Formula provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. That raises the question discussed in this analysis as to whether the Veteran is entitled to a separate rating for any associated objective neurologic abnormalities resulting from degenerative changes to the thoracic spine. The Veteran's thoracic spine disability has been service connected since March 1997 and has been rated at 20 percent for its orthopedic manifestations since September 2002. In the Board's review of the evidence, the first indication of any neurological manifestations occurred in VA examination pre-dating the present claim in April 1998. At that time, the Veteran complained of occasional radicular pain down into his left leg and the examiner noted decreased left foot and leg strength. In September 2002, the Veteran reported erectile dysfunction. In VA outpatient notes in July 2005, the Veteran specifically denied any gastrointestinal, genitourinary, or neurological symptoms. Similar findings were noted in December 2005. In January 2006, his private orthopedic physician noted that the Veteran had a four month history of worsening back pain but the Veteran did not have any bladder or bowel complaints, good strength, and normal sensation. A note the next month also indicated left lower extremity pain. The Veteran was examined by VA in February 2006. He complained of low back pain with flares 12 to 15 times a month. On the other hand, the pain did not radiate. On examination, the examiner noted normal curvature of the spine with slight tenderness to percussion. Deep tendon reflexes were normal for both the upper and lower extremities. The Veteran had a steady and smooth gait. Dermatomes were intact C3 through S1. Flexion was to 90 degrees; extension was to 30 degrees; left and right lateral rotations were to 30 degrees; and left and right lateral flexions were to 30 degrees. There was no pain with bilateral leg raising and no paraspinal spasm. The examiner reported that there was no evidence of pain, lack of endurance, weakness, incoordination, or fatigue with repetition of five. It was noted that there were no incapacitating episodes within the last twelve months. X-rays showed degenerative changes of the thoracic spine, and this was the examiner's diagnosis. In March 2006, the Veteran reported to his VA medical providers that his low back pain was intermittent in nature and there was some tingling in his feet. He could bear weight but it was difficult due to pain. He had symmetrical strength, reflexes, and sensation. In April 2006, the Veteran's private orthopedic physician wrote a letter that the Veteran should not walk more than 100 feet or climb more than 5 steps for the indefinite future. In a VAMC note dated in June 2007, the Veteran did not have any sensation abnormality complaints and upon examination, it was noted he had symmetrical strength, reflexes, and sensation. In June 2009, the Veteran sought treatment for left leg dysthesias which was treated with moist heat and physical therapy. Also starting in June 2009, the Veteran received a series of epidural steroid injections to the lumbar spine because of sharp pain. The Veteran reported leg pain travelling down the leg and weakness, but no loss of feeling. He did not have any bladder or bowel complaints, and he had normal strength and reflexes, and intact sensation. The diagnosis was degenerative disc disease of the lumbar spine and lumbar radiculopathy. In August 2009, the Veteran stated he had no sensation abnormalities or genitourinary or gastrointestinal complaints and he had symmetrical strength, reflexes, and strength. The Veteran had a VA examination in December 2009. It was noted the Veteran had retired because he was eligible by age or duration. He reported clicking in the shoulders and upper back with movement. Aching pain was present most of the time, rated a 4 on a pain scale of 10, and was exacerbated with lifting and carrying. Pain radiated to his shoulders. He said he had no flare-ups of his spinal conditions and denied having incapacitating episodes. He could walk a quarter mile, and used a brace, cane and corrective shoes for ambulation. Gait was markedly antalgic. He reported urinary urgency every 1-2 hours and 2 times at night, frequency, nocturia, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, fatigue, decreased motion, stiffness, weakness, and pain. There were no bowel complaints. Objective abnormalities of the thoracic sacrospinalis included left sided spasm, guarding, pain, tenderness and weakness. The examiner noted listing and lumbar lordosis, but the Veteran's symptoms were not severe enough to cause abnormal gait or spinal contour. Motor testing showed abnormalities in the lower extremities. Sensory testing was normal in the upper extremities and impaired in the lower extremities. Reflexes relating to the thoracic spine were normal. Flexion measured to 63 degrees, extension to 10 degrees, left lateral flexion to 22 degrees, right lateral flexion to 24 degrees, left rotation to 15 degrees, and right rotation to 19 degrees. The examiner observed pain on active range of motion including repetitive motion, but no additional limitations were observed after repetitive testing. Lesage's sign was positive on both legs. X-rays showed normal alignment of the thoracic spine, but mild to moderate disc space narrowing, and anterior spondylosis in the mid-thoracic spine. The impression was degenerative changes but no acute osseous abnormality involving the thoracic spine. The diagnosis was degenerative joint disease of the thoracic spine, moderate, with spondylosis in mid-thoracic extent. The examiner said the condition severely impacted shopping, exercise, recreation, travelling, bathing, and dressing. It prevented sports and moderately impacted grooming and chores. The condition mildly impacted feeding and toileting. The examiner observed that the Veteran's multiple back pathologies make ambulation difficult and he is unable to lift and carry things. In December 2009, the Veteran was admitted to VA for rehabilitation for his lower back symptoms and for left lower extremity dysthesias. He reported erectile dysfunction and a sciatic type pain in his left leg. By the end of the hospitalization that month, he noted mild improvement to numbness in the lower left leg. In August 2010, the Veteran stated he had no sensation abnormalities, genitourinary or gastrointestinal complaints and he had symmetrical strength, reflexes, and strength. In February 2013, the veteran was provided a VA examination that focused on whether the Veteran had any neurologic abnormalities. The Veteran reported that he has diarrhea approximately 2 times a month for the past two to three years. An episode can last up to 48 hours. He did not need to use diapers or pads. There was no association with food, nausea and vomiting, or abdominal distension. There have not been any episodes of constipation. The Veteran noted improvement with Pepto Bismol. His last colonoscopy was 8 years ago and it was normal. He has not been told by a physician that any bladder or bowel symptoms are related to his back problems. The VA examiner concluded the Veteran's diarrhea symptoms may be related to food intact or as a residual of a prior cholecystectomy. The Veteran reported urinary frequency of every 1-2 hours and 2 -3 times at night. He did not have incontinence or needed to use pads and diapers. There was no dysuria, a history of kidney surgery, prostatis, or a diagnosis of benign prostate hypertrophy. The examiner determined the Veteran also had signs and symptoms of a voiding obstruction dysfunction. The Veteran reported a slow weak stream as well as decreased force in the stream. He also had recurrent hematuria of an unknown etiology (but has no neurological basis) and recurrent proteinuria more likely than not related to hypertension. In the opinion of the VA examiner, the Veteran's urinary symptoms were less likely than not related to his service-connected thoracic spine disability. As noted, the recurrent hematuria had an unknown etiology and the recurrent proteinuria was more likely than not related to the Veteran's hypertension. As to the remaining symptoms, after review of the radiological studies, the examiner did not find any foraminal narrowing of the spine that would induce the Veteran's symptoms and the examination findings did not lead to a conclusion of a neuropathy induced abnormality. For similar reasons, the Veteran's erectile dysfunction was not related to his thoracic spine disability. In addition, the Veteran had hypertension and low testosterone, both of which could be responsible for the erectile dysfunction. The examiner did note the Veteran had intervertebral disc syndrome with myelopathy of the spine causing symptoms in the lower extremities bilaterally. The Veteran had a history of back problems and stated he had pain in the lumbar area with radiation to the left lower extremity. The pain was steady with occasional numbness and paresthesias, which was described as mild. As to the upper extremities, both hands ached especially in the morning and the neck and right shoulder ached and popped a lot. The Veteran had an EMG but did not recall the results. The Veteran reported he had recently been diagnosed with gout. The Veteran did not have any symptoms of radiculopathy related to the thoracic spine area. Upon examination, muscle strength was normal and there was no muscle atrophy in any extremity. Reflexes were normal and sensation was normal to light touch. The Phalen's and Tinel's signs were negative. The Veteran had mild signs of incomplete paralysis of the sciatic nerve but all other nerve findings were normal. The examiner noted a CT scan of the thoracic spine demonstrated normal alignment and vertebral body height. There were diffuse degenerative changes with disc space narrowing and endplate osteophytes. The disc osteophyte complex at T3-T4 was unchanged without spinal canal narrowing. There was disc space narrowing, end plate osteophytsis, and vacuum disc at T7-T8. The examiner stated there is degenerative disc disease of the thoracic spine but there were no correlating complaints of radiation related to the thoracic spine. The Veteran also had mild/moderate narrowing in L3 through S1 areas which resulted in the note neuropathy in the Veteran. After careful review of the evidence, the Board has concluded that the Veteran is not entitled to a separate rating for any objective neurological abnormalities due to the degenerative changes of the thoracic spine. The Veteran appears to have urinary and bowel symptoms, but the expert determined that these symptoms are not related to any spine disability, but are instead related to other causes such as hypertension, which is not service connected. The Veteran does appear to have radiculopathy in at least the left leg but probably both legs. The examiner, however, noted those symptoms are related to degenerative changes in the lumbar spine, not the thoracic spine. The examiner specifically noted there are no radicular findings that originate or are caused by the thoracic spine. The Board notes that his service-connected disability was limited to the thoracic spine as the evidence did not show that the lumbar spine disability had onset during or was related to service. The disability to his lumbar spine was specifically found not due to service in the September 1997 rating decision that granted service connection for the thoracic spine. The Board has considered the Veteran's lay assertions. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes, nor is he competent to attribute any neurological symptom or abnormality to his service-connected disability. That involves specialized knowledge or training in the management, identifying of diseases and complications related to spine diseases and injuries. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's thoracic spine disability have been provided by the medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated, including whether a neurologic abnormality has resulted from the degenerative changes of the thoracic spine. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology or their relationship to his service-connected thoracic spine disability. Accordingly, for the reasons explained above, the preponderance of the evidence is against a separate rating for objective neurological abnormalities of the thoracic spine, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Evaluation Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The Board notes that in November 2012, the Director of the Compensation Service (Director) determined that an extraschedular evaluation is not warranted and subsequently thereto, in February 2013 the Board also denied an extraschedular evaluation for the degenerative changes of the thoracic spine disability. Total Disability Rating for Compensation Based on Individual Unemployability The Veteran has not raised and the record does not reasonably raise the claim for a total disabled rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Here, the Veteran retired from his civilian occupation because he was eligible by reason of age or duration. Therefore, under the evidence of record, the Board finds there is no basis to discuss a rating of total disability based upon individual unemployability. ORDER Entitlement to a separate rating for residuals of degenerative changes of the thoracic spine, to include bladder and bowel impairment, and radiculopathy to the upper and lower extremities is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs