Citation Nr: 1327480 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 12-17 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for low back strain with a herniated disc at L5-S1 and congenital anomalies, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for right leg weakness, associated with the service-connected low back disability, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from February 1987 to May 1987 and from January 1988 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was remanded in February 2013, following a November 2012 Travel Board hearing. Following the remand, the evaluation for the right leg disability was increased from zero percent to 10 percent, effective from September 2010 (the date of the claim for an increased evaluation). Because this rating is less than the maximum available under applicable diagnostic criteria, the claim for an increased evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected low back disorder is not productive of ankylosis or incapacitating episodes requiring doctor-prescribed bed rest. 2. The Veteran's service-connected right leg weakness is no more than mild in degree, with minimal objective findings upon recent VA examinations. 3. The Veteran's only service-connected disabilities are his low back strain with a herniated disc at L5-S1 and congenital anomalies, currently evaluated as 40 percent disabling; and associated right leg weakness, currently evaluated as 10 percent disabling. 4. The Veteran's service-connected disabilities, in and of themselves and in light of his education and employment background, do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for low back strain with a herniated disc at L5-S1 and congenital anomalies have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for an evaluation in excess of 10 percent for right leg weakness, associated with the service-connected low back disability, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for entitlement to TDIU have not been met. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.16, 4.17 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the requisite 38 C.F.R. § 3.159(b) letter was furnished to the Veteran in September 2010. While this letter only lists the TDIU claim on its front page, page 2 of the letter contains a detailed description of the elements needed to be shown for increased ratings for the two service-connected disabilities and, accordingly, is fully adequate. The elements of all three claims, as well as the types of evidence needed to support those claims, were further addressed during the Veteran's hearings. See Bryant v. Shinseki, 23 Veteran. App. 488, 493-94 (2010). All three claims were also recently readjudicated in a June 2013 Supplemental Statement of the Case. Overall, there are no deficiencies of notification in this case requiring corrective action upon remand. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has been afforded multiple VA examinations, including a March 2013 examination conducted in accordance with the instructions contained in the February 2013 remand. Also, in accordance with the remand instructions, VA has obtained up-to-date VA treatment records and the Veteran's vocational rehabilitation folder. Previously, the claims file also included VA and private treatment record, records from the Social Security Administration (SSA), and service treatment records. The Veteran has not brought to VA's attention any additional relevant evidence not obtained to date, nor is there any other indication of such evidence. Accordingly, VA's duty to assist has been fulfilled in this case. The Board is cognizant that, in June 2013, the Veteran presented argument as to the adequacy of the March 2013 VA examination. First, he noted that the examiner refused to review the copious additional documentation he brought to the examination. The Veteran has not specified the relevance of this documentation, and the examiner did confirm reviewing the claims file. Unless and until the Veteran specifically describes relevant documentation not otherwise included in the claims file, the Board will not find this argument to be a legitimate basis for a remand for a further examination and records review. Second, the Veteran stated that the examiner did not question him about incapacitating episodes, but the examination report suggests otherwise, as this matter is addressed on page 15 of the report. Finally, while the Veteran stated that there was "no duration of pain" asked about, the examiner noted on page 11 of the report that the Veteran declined repetitive-use testing "stating that it would hurt too bad." While the Board has an obligation to ensure the adequacy of a VA examination, the Veteran has presented no argument to indicate that the March 2013 VA examination was anything less than fully comprehensive. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Increased rating claims A. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. B. Low back disorder In this case, the Veteran's low back disorder has been evaluated at the 40 percent rate since the effective date of service connection in January 1997. The RO did reduce this evaluation to 10 percent as of June 2012, but the Board granted restoration of the 40 percent evaluation in the February 2013 decision. Under the general formula for rating spine disorders (Diagnostic Codes 5235-5242), a 40 percent evaluation is in order for forward flexion of the thoracolumbar spine of 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, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. 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. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. In other words, given the above criteria, the Veteran in this case is entitled to an evaluation in excess of 40 percent for a low back disorder only on two bases: unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve month. Other symptoms, such as limitation of all motions, muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 40 percent evaluation and do not warrant further discussion with regard to the question of whether an increased evaluation is warranted. The Board has reviewed the Veteran's VA examination reports dated from September 2010 to March 2013, as well as numerous VA and private treatment records from the corresponding time period. This medical documentation in its entirety is either silent for, or indicates the absence of, both ankylosis and doctor-prescribed bed rest on account of incapacitating episodes. There is absolutely nothing in this documentation suggesting any symptomatology that could support an evaluation in excess of 40 percent under the relevant schedular criteria. The remaining question for the Board is whether separate evaluations are warranted for associated objective neurological abnormalities, other than the service-connected right leg weakness (described below). The Board has again reviewed the cited evidence and finds that there exist no further abnormalities, and the March 2013 VA examination was specifically negative for corresponding abnormalities of the left lower extremity. In short, there is no basis for a schedular evaluation in excess of 40 percent for low back strain with a herniated disc at L5-S1 and congenital anomalies, and the claim for that benefit must be denied. C. Right leg weakness The Veteran's service-connected right leg weakness, associated with his service-connected low back disorder, has been evaluated at the 10 percent rate for the entire pendency of this appeal (i.e., since September 2010) under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this section, evaluations are assigned for incomplete paralysis of the sciatic nerve which is mild (10 percent), moderate (20 percent), moderately severe (40 percent), and severe with marked muscular atrophy (60 percent). In cases of complete paralysis, with the foot dangling and dropping, no active movement of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost, an 80 percent evaluation is warranted. The Board has again reviewed the Veteran's VA examination reports dated from September 2010 to March 2013, as well as numerous VA and private treatment records from the corresponding time period, to ascertain whether there is evidence establishing that the Veteran's right leg weakness is more than mild in degree and warrants a 10 percent evaluation. This evidence, however, consistently shows the contrary. VA spine and neurological examinations from September 2010 indicate that the Veteran reported shooting right lower extremity pain, but reflex testing was within normal limits. A December 2010 VA general medical examination report reflects that the Veteran complained of right leg numbness, but a reflex examination was again normal, and the examiner noted that there was no radiculopathy per MRI or EMG. The March 2013 VA examination revealed normal muscle strength testing, normal reflexes, and decreased sensation only in the foot and toes. When specifically asked, the March 2013 VA examiner indicated that the right leg severity of radiculopathy was "[m]ild." There are no specific findings to suggest the contrary. Overall, the evidence does not support a schedular evaluation in excess of 10 percent for right leg weakness, associated with the service-connected low back disorder, and the claim for that benefit must be denied. D. Additional rating considerations With both disabilities, is no basis for a "staged" rating in this case. Rather, the symptomatology shown upon examination during the pendency of the appeal has been essentially consistent and fully contemplated by the assigned disability ratings. Moreover, the Veteran has submitted no evidence showing that these disorders have markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that these disorders have necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, the most significant symptomatology associated with these disorders has been discussed above and is fully consistent with, and contemplated by, the assigned ratings. As such, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Veteran. App. 111 (2008). III. TDIU Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Furthermore, a total disability rating may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). In this case, the Veteran's service-connected disabilities are limited to his low back strain with a herniated disc at L5-S1 and congenital anomalies, currently evaluated as 40 percent disabling; and associated right leg weakness, currently evaluated as 10 percent disabling. The combined evaluation under 38 C.F.R. § 4.25 is 50 percent. See 38 C.F.R. § 4.16(a). This evaluation does not meet the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether there exists a basis for referral for an extra-schedular grant of entitlement to TDIU. In this regard, the Board has considered the Veteran's educational and employment background. In his October 2010 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), he reported four years of high school education (GED) and noted that he had not worked in the past five years, having last applied to an auto parts company around 2000. The claims file includes the Veteran's application for Social Security Administration benefits, which were granted in May 2007 based upon a March 2007 medical examination indicating a marked right leg limp, with the Veteran unable to walk without use of his cane. The examining doctor also found that the Veteran could lift and/or carry up to 10 pounds occasionally, sit for four hours at one time, walk for 30 minutes at one time, and stand for one hour at one time in an eight-hour workday. The doctor further opined that the Veteran required the use of a cane to ambulate and would be unable to carry small objects while using the cane. In terms of foot controls, the Veteran would be unable to use his right foot but could occasionally use his left foot to operate controls. As far as postural activities, the Veteran would be unable to climb, balance, stoop, knee, crouch, or crawl. Environmentally, he would be unable to work at unprotected heights and around moving mechanical parts, or operate a motor vehicle. The Board has afforded probative weight to these medical findings but also notes that they date more than three years prior to the receipt of the current claim (in October 2010) and further finds that they are not consistent with contemporaneous medical evidence, which, as noted above, reflect dramatically less severe symptoms in regard to the right leg. Significantly, the Board notes that the examiner who conducted the most recent (March 2013) VA examination confirmed the use of a cane but found that the Veteran's thoracolumbar spine condition did not impact on his ability to work. In elaborating on the Veteran's disability, the examiner noted that, although the Veteran was "currently having a flare-up due to the long ride today" and had "some mild neurologic deficit" of the sciatic nerve that was at least as likely as not due to a flare-up of the back condition, no weakness was currently shown on examination. The examiner also cited to a September 2012 VA consultation report indicating a relatively normal back and leg function presumably when the Veteran was not having a flare-up. Moreover, there was no functional loss of the right leg due to weakened movement, excess fatigability, incoordination, or pain on used evoked on the current examination. In summary, the Board finds that the evidence contemporaneous with the current claim (i.e., as of October 2010, or one year prior) does not support the Veteran's contention that his service-connected disabilities, in and of themselves, are of such severity as to preclude his participation in all forms of substantially gainful employment and would not support referral for consideration of an extra-schedular evaluation under 38 C.F.R. § 4.16(b). This contemporaneous evidence shows a markedly less severe disability picture than that shown in 2007, bearing in mind as well that the legal standards utilized by the Social Security Administration in determining eligibility for disability benefits are different than those encompassed in 38 C.F.R. § 4.16. The Board is aware of the Veteran's difficulties in seeking employment. His contentions regarding this matter are evident from his hearing testimony. That having been said, the fact that a veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Overall, the Board concludes that the preponderance of the evidence is against the Veteran's claim that his service-connected disabilities render him unable to obtain or retain substantially gainful employment. Accordingly, the preponderance of the evidence is against his claim of entitlement to TDIU, and the claim must be denied. (CONTINUED ON NEXT PAGE) In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). The Board would point out, however, that the Veteran is free to reopen his claim at any time. ORDER Entitlement to an increased evaluation for low back strain with a herniated disc at L5-S1 and congenital anomalies, currently evaluated as 40 percent disabling, is denied. Entitlement to an increased evaluation for right leg weakness, associated with the service-connected low back disability, currently evaluated as 10 percent disabling, is denied. Entitlement to TDIU is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs