Citation Nr: 1327494 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-04 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased evaluation for degenerative arthritis of the lumbar spine with multilevel degenerative changes, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from January 1961 to January 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the issue on appeal. When this case was previously before the Board in May 2013, it was remanded for additional development. The case is now before the Board for final appellate consideration. The RO in Boston has jurisdiction of the Veteran's claims file. 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). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's degenerative arthritis of the lumbar spine with multilevel degenerative changes results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine with multilevel degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in a February 2006 letter. A March 2007 letter addressing a separate claim provided Dingess notice. Accordingly, the duty to notify has been fulfilled. The claim was subsequently readjudicated in a December 2007 statement of the case. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records and the transcript of a March 2013 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board also finds that VA has substantially complied with the Board's prior remand. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). VA examinations were conducted in February 2006 and June 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate. Although the February 2006 VA examination report does not state that the examiner reviewed the Veteran's claims file or medical records, the evaluation was to assess the current level of the disability. Each examiner considered the Veteran's medical history, including his lay reports of symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The June 2013 VA examiner stated that it was not possible, without resorting to speculation, to predict within a reasonable degree of medical certainty a potential loss of range of [lumbar spine] motion manifested as a consequence of a flare or exacerbation outside the clinical setting. He explained that there was insufficient evidence or objective examination findings that would provide a reliable prediction of decreased functional ability during flare-ups or with repetitive use over a period of time. As the examiner explained the basis for being unable to render the opinion without resort to mere speculation, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the 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. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability is evaluated under Diagnostic Code 5242 for degenerative arthritis of the spine. The Rating Schedule provides for the evaluation of all spine disabilities (Diagnostic Codes 5235 to 5243) under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula) (Diagnostic Code 5243). The General Rating Formula specifies in pertinent part that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Note (1) to the General Rating Formula provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately, under an appropriate diagnostic code. Note (2) provides in pertinent part that normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. The Incapacitating Episodes Formula specifies in pertinent part that a 20 percent disability rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Note (1) provides that for purposes of evaluations under Diagnostic Code 5243, 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. Diagnostic Code 5243. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran generally contends that he is entitled to a higher evaluation. During the March 2013 hearing, he testified that his back disability had not increased in severity since the February 2006 VA examination. March 2013 hearing transcript (T.) at p. 14. His pain was from 6-8 constantly. He stated that he received treatment from VA, including ibuprofen and a pain killer. The pain medication did alleviate symptoms. The Veteran said that he had painful range of motion but "[n]ot that much" limitation of motion (T. at p. 12), a lack of skin sensation along the sides, periodic muscle spasms and pain radiating down the legs. He worked two days a week, approximately six to eight hours a day, at a non-profit treatment center for homeless veterans. His back did not give him problems at work. Standing and excessive walking were the only times it bothered him. Sitting was not much of a problem. His back did not prevent him from doing household chores. He could not walk for exercise and instead rode a recumbent bike four or five times a week. He rarely needed bed rest during flare-ups or exacerbations. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine. The evidence of record simply does not show that the Veteran's degenerative arthritis of the lumbar spine meets the criteria for an increased evaluation. VA treatment records reflect ongoing treatment for degenerative arthritis of the lumbar spine during the appeal period. The report of the February 2006 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The pertinent diagnosis was lumbar strain. The Veteran complained of pain about three to four times a year, typically brought on after he had been standing or walking for over half an hour. It was relieved by sitting or taking a Motrin. At worst, the pain could last up to two weeks. He described it as a dull ache with no radiation. He denied any urinary or bowel problems associated with the low back pain. The pain intensity had increased gradually over time. Peripheral nerve examination was symmetrical and normal. Sensory, motor and reflex examination of the upper and lower extremities was symmetric and within normal limits. Examination of the spine showed spinal symmetry in motion and appearance, and all spinal curvatures were within normal limits. The Veteran did not show radiation of pain on movement, bone, muscle tenderness or spasm. The Veteran demonstrated flexion to 90 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. These ranges of motion combine to 230 degrees. The restriction was due to pain. No intervertebral disc syndrome was present. After repetitive use, the range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. The report of the June 2013 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The pertinent diagnosis was spondylosis degenerative joint disease lumbosacral spine, and lumbosacral radiculopathy. The Veteran complained of worsening pain over the past several years. He reported a daily pain and stiffness of the lower lumbar spine. The pain was bilateral and at times right-side predominant. The Veteran had participated in physical therapy in past years but had no history of spine surgery or invasive therapy. He used a seat cane for long walks such as when he was on vacation. He experienced intermittent bouts of sciatica (pain radiation through the right buttock, posteriolateral (sic) right thigh and lateral calf). The radicular pain was not constant, not predictable, and occurred several times a year. The Veteran reported flare-ups with prolonged weightbearing activity. He must stop and sit or lean forward (used seat cane). The flares lasted from hours to days and could limit participation in weightbearing activity. On physical examination, the Veteran had forward flexion to 70 degrees, with pain beginning at 50. He had extension to 20 degrees, with pain beginning at 10. Right lateral flexi0n was to 20 degrees, with pain beginning at 15. Left lateral flexion was to 25 degrees, with pain beginning at 20. Right lateral rotation was to 25 degrees, with pain beginning at 20. Left lateral rotation was to 20 degrees, with pain beginning at 15. The examiner noted that the Veteran's body habitus prevented effective lateral rotation. His forward flexion was limited by his back condition. These ranges of motion combine to 180 degrees. The Veteran was able to perform repetitive-use testing with three repetition. He had no additional limitation of range of motion following repetitive-use testing. He did have functional loss and/or functional impairment consisting of less movement than normal; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; and interference with sitting, standing and/or weight-bearing. The Veteran had bilateral muscle tenderness throughout the lower back, and guarding and/or muscle spasm was present but did not result in abnormal gait or spinal contour. The Veteran had no muscle atrophy. Results of muscle strength, knee and ankle reflex, and sensory examinations were normal. Concerning radiculopathy, the Veteran had moderate intermittent pain (usually dull) of the right lower extremity. The right side radiculopathy was described as mild. He had no other signs or symptoms of radiculopathy. The Veteran had no other neurological abnormalities or findings related to the thoracolumbar spine, such as bowel or bladder problems/pathologic reflexes. The Veteran had intervertebral disc syndrome but had no incapacitating episodes over the past 12 months. The Veteran used no assistive devices. The Veteran's thoracolumbar spine condition did not impact his ability to work. As noted above, the June 2013 VA examiner stated that it was not possible, without resorting to speculation, to predict within a reasonable degree of medical certainty a potential loss of range of [lumbar spine] motion manifested as a consequence of a flare or exacerbation outside the clinical setting. He explained that there was insufficient evidence or objective examination findings that would provide a reliable prediction of decreased functional ability during flare-ups or with repetitive use over a period of time. As the examiner explained the basis for being unable to render the opinion without resort to mere speculation, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Jones, supra. The foregoing evidence simply does not show that the Veteran's range of motion satisfies the criteria for an evaluation in excess of 10 percent. The foregoing evidence fails to show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See the General Rating Formula. The foregoing evidence fails to show any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. See Note (1) to the General Rating Formula. The evidence also fails to show intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks. See the Incapacitating Episodes Formula. The Board is aware of the Veteran's credible complaints of pain, made during VA examinations and the hearing. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which lumbar spine disabilities are evaluated. The observable symptoms that the Veteran describes simply do not satisfy the criteria for an evaluation in excess of 10 percent. The Board is aware that the Veteran's brief asserts that a 20 percent evaluation is warranted under the General Rating Formula, since the June 2013 VA examination showed that pain began at 50 degrees of forward flexion. However, that examination also showed that the Veteran had no additional limitation of range of motion following repetitive-use testing. In other words, even after repetitive-use testing the Veteran still had forward flexion to 70 degrees. Thus, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's service-connected disability are contemplated in the 10 percent evaluation. The foregoing evidence simply does not show that pain, due to the service-connected disability, has caused functional loss warranting an evaluation in excess of 10 percent under the General Rating Formula. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's lumbar spine disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's lumbar spine disability results in pain and limitation of motion. The General Rating Formula provides ratings based on limitation of motion with or without pain. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for an extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine. Thus, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. REMAND A preliminary review of the record indicates that the issue of entitlement to a TDIU requires additional development. The February 2006 VA examination report provides that the Veteran worked full time as a medical administrator for VA. During the March 2013 hearing, the Veteran stated that he only worked two days a week, approximately six to eight hours a day, at a non-profit treatment center for homeless veterans. The Veteran has had a combined total evaluation of at least 80 percent since August 2009. These facts raise the issue of entitlement to a TDIU. Although raised by the record, this issue has not been adjudicated by the Agency of Original Jurisdiction. In Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court of Appeals for Veterans Claims held that when entitlement to TDIU is raised during the adjudicatory process of an underlying disability or during the appeal of the rating assigned for that disability, it is part of the claim for benefits for the underlying disability. This issue has not been adjudicated by the RO, and as such, has not been developed for appellate consideration. Pursuant to Rice, it must be remanded to the RO for adjudication. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran and his representative a letter that notifies him of the information and evidence required for a TDIU. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate his claim for a TDIU, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine whether it is at least as likely as not (50 percent or more probability) that the Veteran's service-connected disabilities render the Veteran unemployable. The claims file must be made available to the examiner. A complete rationale for all opinions expressed must be provided. 3. Then, adjudicate the issue of entitlement to a TDIU. Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative. If the benefit sought is denied, the Veteran and his representative should be provided a statement of the case and afforded an appropriate period to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs