Citation Nr: 1329245 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 13-05 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter is on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran has submitted additional evidence since the most recent adjudicative decisions, and has not submitted a waiver. The Board has, accordingly, reviewed this evidence and finds that there is no prejudice to the Veteran by adjudicating the appeal. Specifically, much of this evidence does not relate to the issue on appeal, and the evidence that is potentially relevant is largely repetitive of information that was already of record. Therefore, the Board may continue to review the claim without the need remand for RO review. The issue of entitlement to 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 Veteran's lumbar spine disability has been characterized by complaints of pain and tenderness, abnormal contour of the spine and some limitation of motion; forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with severe recurring attacks or with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months have not been shown. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no more, for degenerative arthritis of the lumbar spine, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5003, 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service- connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran's lumbar spine claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in June 2011. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. To the extent the examiner stated that his opinion regarding the lack of objective findings with respect to radiculopathy could be impacted by additional treatment records asserted by the Veteran as documenting such a diagnosis, and these records were never furnished to the Veteran, the Board finds that remand for this purpose is not warranted, given the Veteran's failure to take advantage of this opportunity and his subsequent arguments that emphasize limitation of motion as opposed to the presence of radiculopathy. Accordingly, 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). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings In a July 2011 rating decision, the Veteran was granted service connection for degenerative arthritis in the lumbar spine with a 10 percent disability rating. He has disagreed with the assigned rating, specifically asserting in February 2013 that his flexion more limited that was clinically observed. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Court of Appeals for Veterans Claims (CAVC) has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). As mentioned above, the Veteran is currently rated at 10 percent for his lumbar spine disability under 38 C.F.R. § 4.71a, DC 5243 (addressing intervertebral disc syndrome), which applies a general rating formula that is applicable for most spine disabilities. Under this rating formula, a rating in excess of 10 percent is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; * Combined range of motion of the thoracolumbar spine not greater than 120 degrees; * Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; * X-ray evidence of arthritis with involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations; or * Incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months (all 20 percent). 38 C.F.R. § 4.71a, DCs 5003, 5237, 5242, 5243 (2012). The term "combined range of motion" refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note 2, prior to DC 5243 (2012). Additionally, 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, Note 1, following DC 5243 (2012). The Board determines that a 20 percent rating is warranted based on the evidence of record. Specifically, while the December 2012 supplemental statement of the case (SSOC) correctly notes that the Veteran's ranges of motion are greater than what is required for an increased rating, it did not explicitly address functional limitations such as spasm and guarding. In this regard, when the Veteran was evaluated by a VA examiner in June 2011, he stated that he experienced mild to moderate pain daily, and gets flare-ups approximately once per month, although only over-the-counter pain medications and a massage chair have been required to relieve symptoms. He occasionally uses a cane in order to walk and, even when the cane is used, he is able to walk only a quarter of a mile at a time. Upon examination, the Veteran was observed to have mild scoliosis, and his pelvis was tilted to the right. While his gait was observed to be normal, he still displayed kyphosis and lumbar flattening. Based on these observations, the Board concludes that the Veteran is displaying guarding that is severe enough to result in an abnormal spinal contour, to include scoliosis and abnormal kyphosis, which meets the criteria set forth in the general rating formula. Accordingly, a 20 percent rating is warranted for his lumbar spine disability for the period on appeal. Next, the Board must consider whether a rating in excess of 20 percent rating is warranted for the Veteran's lumbar spine disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). In order to warrant a rating in excess of 20 percent under the general rating formula, the evidence must show: * Forward flexion of the thoracolumbar spine to 30 degrees or less; * Favorable ankylosis of the entire thoracolumbar spine; or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (all at 40 percent). 38 C.F.R. § 4.71a, DCs 5003, 5237, 5242, 5243 (2012). Based on the evidence of record, a rating in excess of 20 percent is not warranted. First, the Veteran has not exhibited a limitation of motion that is sufficient to warrant an increased rating. Specifically, at his VA examination in June 2011, he exhibited 96 degrees of flexion and 20 degrees of extension and, significantly, there was no objective evidence of pain in active range of motion. Moreover, while the Veteran estimated that his range of motion would be reduced by an additional 30 percent during a flare-up condition, his forward flexion would have exceeded 30 degrees even during such events. Indeed, the Veteran appears to acknowledge in his February 2013 statement that his limitation of flexion was not less than 30 degrees. Additionally, ankylosis was also not shown on this or on any other occasion. Therefore, an increased rating is not warranted on these bases. The evidence also does not indicate that the Veteran has experienced incapacitating episodes related to intervertebral disc syndrome. In fact, he specifically denied a history of incapacitating episodes at his VA examination in June 2011. Therefore, a rating in excess of 20 percent is also not warranted on this basis. In considering the Veteran's claim, the Board has also specifically considered the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). It was partially on this basis that the Board determines that a 20 percent rating was warranted. However, an evaluation in excess of 20 percent is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the ratings already assigned. Specifically, as noted above, even when considering the impact of pain and flare-up conditions, the Veteran's range of motion still exceeded what was required in order to warrant a rating in excess of 20 percent. Moreover, the VA examiner specifically noted that there was no additional limitation in range of motion during the examination itself. Next, the Board has considered whether a separate evaluation is warranted for any associated neurological abnormality. Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a) (2012). However, the evidence does not indicate that a separate rating is warranted. In so concluding, the Board recognizes that the Veteran has complained of radiating pain into the lower extremities. However, there is no clinical indication that this pain has resulted in any actual neurological deficit. Specifically, at his VA examination in June 2011, the detailed reflexes in his lower extremities were substantially normal. While the examiner did note the presence of decreased sensitivity in the thigh area to both pin prick and light touch, his strength was normal, and there was no muscle atrophy. Finally, there was no evidence of fecal or urinary incontinence that was attributable to a neurological disorder. The evidence also includes private treatment records that were recently submitted, which indicate that he underwent medial branch neurotomies in the lumbar spine. However, there is no indication that this procedure is the result of any diminished neurological functioning. Thus, a separate evaluation based on neurological symptomatology is not warranted. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his lumbar spine disability is worse than the ratings he currently receives. 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 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 that is to be made after the evidence has been admitted. See 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. He is not, however, competent to identify a specific level of disability of his lumbar spine disability according to the appropriate diagnostic codes. On the other hand, 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 and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board has not only considered the requirements of the diagnostic code, but all functional limitations as well, and has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. see also DeLuca, 8 Vet. App. 202. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on evidence of record, the Board determines that a 20 percent rating, but no more, is warranted for the Veteran's lumbar spine disability for the period on appeal. The appeal is granted to this extent. ORDER An initial 20 percent evaluation, but not greater, for degenerative arthritis of the lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In his August 2011 Notice of Disagreement, the Veteran stated that "I have retired from work because of my limited movement and pain. This is part of a hard life with my back being so painful and that I can't enjoy life as before." Although the Veteran did not specify the impact his service- connected lumbar spine disability had on his employment, it is nevertheless reasonable to construe this statement that an assertion that he is unemployable due to his service- connected disability. When a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible, to include entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In other words, if the issue of entitlement to TDIU is raised by the evidence of record, it is part of the underlying appeal. However, as this issue has not been considered by the RO, it must be first considered there prior to Board review. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran's last known address informing him of the evidence required to establish entitlement to TDIU under 38 C.F.R. §§ 3.340 and 4.16. 2. If the Veteran has undergone any private treatment related to his service- connected disabilities, and the records of such treatment are not in the claims file, the RO should attempt to obtain them after acquiring the Veteran's authorization. If the Veteran has undergone any treatment from a VA medical facility, these records should also be acquired. 3. After the above development is completed, adjudicate the issues of entitlement to TDIU. The RO should take any additional development it deems necessary to adequately adjudicate these claims, including additional VA examinations. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a new supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs