Citation Nr: 1329785 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-06 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for service-connected joint pain due to undiagnosed illness (UI), to include on an extraschedular basis. 2. Entitlement to service connection for a degenerative lumbar spine disability to include as secondary to a service-connected disability associated with joint pain. 2. Entitlement to service connection for bilateral degenerative joint disease of the knees to include as secondary to a service-connected disability associated with joint pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from November 1988 to May 1991. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2012, the Board remanded the issue of entitlement to a rating in excess of 10 percent for joint pain as due to UI to the RO to adjudicate whether there were additional disabilities that warranted service connection secondary to the Veteran's service-connected joint pain and to evaluate the nature and severity of his joint pain. Multiple examinations were conducted in June 2013, and a June 2013 rating decision granted service connection for temporomandibular articulation, with limited motion, and assigned a 10 percent rating effective April 17, 2007; this rating decision also granted an increased rating of 40 percent for joint pain, effective April 17, 2007. The issue of entitlement to an evaluation in excess of 40 percent for joint pain due to UI based on an extraschedular evaluation is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is assigned the maximum schedular rating for his joint pain due to UI under Diagnostic Code 5025. 2. Degenerative disease of the lumbosacral spine and of the knees was aggravated beyond natural progression by the Veteran's service-connected joint pain due to UI. CONCLUSIONS OF LAW 1. A schedular rating in excess of 40 percent for joint pain due to UI is not available. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5025 (2013). 2. The criteria for the establishment of service connection for degenerative disease of the lumbosacral spine and of the knees due to aggravation are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in July 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. In compliance with the duty to notify, the Veteran was informed in the July 2007 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the July 2007 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA joint evaluation was conducted in June 2013. 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 June 2013 VA evaluation obtained in this case is adequate, as it includes a discussion of the Veteran's relevant joint symptomatology. There is adequate medical evidence of record, which include VA treatment records and a recent VA examination report, to make a determination on the increased rating issue in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination relevant to the increased rating issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). With respect to the service connection issue on appeal, the Board is granting service connection for degenerative disease of the lumbosacral spine and of the knees, based on aggravation, due to service-connected joint pain. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). Analysis of the Claims Increased Rating Claim An April 2003 rating decision granted service connection for joint pain and assigned a 10 percent rating effective August 5, 1997 under Diagnostic Codes 5099-5003. A claim for an increased rating for joint pain was received by VA on April 17, 2007. A June 2013 rating decision granted an increased rating of 40 percent for joint pain, effective April 17, 2007. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. 38 C.F.R. § 4.7 (2013). In a claim for an increased disability rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." 38 C.F.R. § 4.27 (2013). The hyphenated diagnostic code in this case indicates that an unlisted musculoskeletal condition, under Diagnostic Code 5099, was the service-connected disability, and joint pain, under Diagnostic Code 5025, was a residual condition. Diagnostic Code 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. Under Diagnostic Code 5025, a rating of 10 percent is warranted for fibromyalgia symptoms that require continuous medication for control. A 20 percent rating is appropriate for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. The highest rating of 40 percent is warranted for symptoms that are constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. The diagnoses on VA joint evaluation in December 2007 were bilateral shoulder rotator cuff tear and bilateral wrist internal derangement. The diagnoses on VA evaluation in May 2011 were degenerative disc disease/degenerative joint disease of the lumbosacral spine, rotator cuff tear of the right shoulder, tendonopathy of the left shoulder, tendon injury of the left wrist, tendinitis of the right wrist, and degenerative joint disease of the knees. The diagnoses on VA evaluations in June 2013 included TMJ, rotator cuff tear of the right shoulder with bursitis, rotator cuff tendonitis of the left shoulder with bursitis, tendonitis of the left wrist, tendonopathy of the right wrist with scapulolunar instability and triangular fibrocartilage complex tear, greater trochanteric bursitis of the right hip, bilateral ankle tendon tear, and plantar fasciitis. The Veteran is currently assigned the maximum schedular rating of 40 percent under Diagnostic Code 5025 for his service-connected joint pain due to UI. The Board does not find that any other musculoskeletal system diagnostic code would be more appropriate for rating the Veteran's systemic joint pain. See 38 C.F.R. § 4.114 (2011). See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Consequently, a rating in excess of 40 percent is not warranted for the Veteran's joint pain due to UI. Service Connection Claim The Veteran seeks service connection for additional disabilities as secondary to his service-connected joint pain due to UI. The Board would note that the June 2013 rating decision found it at least as likely as not that the Veteran's bilateral shoulder rotator cuff tears and tendenopathy, bilateral ankle tears and tendenopathy, bilateral wrist tears and tendonopathy, chronic hip bursitis, recurrent bilateral plantar fasciitis, intermittent apthous ulcers with fatigue, and bilateral TMJ were due to service-connected joint pain due to UI and granted an increased evaluation of 40 percent for joint pain effective April 17, 2007. Consequently, these disabilities are considered service connected as part of the already service-connected joint pain due to UI. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Veteran complained on VA evaluation in September 1997 of intermittent discomfort in multiple joints. Multiple joint pain of unknown cause was diagnosed. According to a September 2006 medical report from A. G. Rosenfeld, M.D., the Veteran complained of a 10-12 month history of back pain. An MRI of the lumbar spine showed degenerative changes of L5-S1 with retrolisthesis of L5 on S1. The Veteran was provided a VA evaluation in May 2011, which included review of the claims file. After review of the claims file and examination of the Veteran, the diagnoses included degenerative disc disease/degenerative joint disease of the lumbosacral spine and degenerative joint disease of the knees. As noted above, the case was remanded by the Board in November 2012 for an examination and nexus opinion on the nature and severity of the Veteran's joint pain due to UI. A June 2013 VA evaluation report, which was based on a review of the claims file and examination of the Veteran, diagnosed degenerative disc disease of the lumbosacral spine with disc herniation; undiagnosed illness of Gulf War syndrome, exacerbating the symptomatology of the lumbar degenerative disc disease; and degenerative joint disease of the knees. The examiner concluded that it was at least as likely as not that the nonservice-connected lumbar spine and bilateral knee disabilities are permanently aggravated beyond natural progression by the Veteran's undiagnosed Gulf War illness because these disabilities are recurrently exacerbated due to chronic inflammatory flares of undiagnosed illness of Gulf War syndrome, although it was not possible to quantify without resorting to speculation the precise amount of exacerbation due to the service-connected disability. Based on the above evidence, especially the June 2013 VA opinion, the Board finds that the Veteran's degenerative disease of the lumbosacral spine and of the knees is aggravated beyond natural progression by his service-connected joint pain due to UI. Consequently, service connection for degenerative disease of the lumbosacral spine and of the knees due to aggravation by service-connected joint pain due to UI is warranted for the approximate amount of disability caused by the aggravation. Lastly, the Court has held that VA must address the issue of entitlement to a total disability rating based on individual unemployability if it is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment is of the type ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides, that is, a living wage. See also, Ferraro v. Derwinski, 1 Vet. App. 326, 331 (1991). The record in this case does not reasonably raise the issue of a total disability rating. The Veteran has not contended that he is unemployable. Although it is unclear how many days a week the Veteran is working, he indicated at his June 2013 VA evaluations that he is at least working part time as a radiologist. The Board would note that even part-time work as a radiologist would produce sufficient income to be considered more than marginal employment. ORDER Entitlement to a schedular evaluation in excess of 40 percent for joint pain due to UI is denied. Entitlement to service connection for degenerative disease of the lumbosacral spine based on aggravation is granted. Entitlement to service connection for degenerative joint disease of the bilateral knees based on aggravation is granted. REMAND Under 38 C.F.R. § 3.321(b)(1) (2013), in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. If the Board determines that the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Court has held that that the Board is precluded from assigning such a rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). Thus, as the delegations of authority found at 38 C.F.R. §§ 3.321(b)(1) clearly provide that the proper procedure for extraschedular consideration of a claim under 38 C.F.R. § 3.321(b)(1) requires consideration in the first instance by the Under Secretary for Benefits (formerly the Chief Benefits Director) or the Director of the Compensation and Pension Service, the Board is obligated to consider the applicability of the extraschedular rating regulation, but must then refer the matter for decision in the first instance by the appropriate VA officials. The Board notes that although the June 2013 rating decision granted the Veteran an increased rating of 40 percent for his joint pain due to UI under Diagnostic Codes5099-5025, which is the maximum schedular rating under Diagnostic Code 5025, the RO has not addressed the possibility of an extraschedular rating. The Veteran contended in his February 2009 substantive appeal that his joint problems significantly affect his employment as a radiologist, as he has to wear a wrist brace many days of the week, has trouble at work using a mouse or keyboard, has difficulty performing his job, and has lost time at work. The Veteran described himself as severely disabled due to his joint related disabilities. Based on the above, the Board finds that additional development is warranted prior to final adjudication of the increased rating issue on appeal. Accordingly, the case is REMANDED for the following actions: 1. The RO should review the claims files, and ensure that all VCAA obligations have been satisfied with regard to the issue of entitlement to an extraschedular rating for joint pain due to UI. 2. Then, the RO should forward the claims file to the Director of the VA Compensation and Pension Service for a determination of whether a higher rating is warranted for the Veteran's joint pain disability on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1). If a determination remains adverse to the Veteran, the Veteran and his representative will be provided a Supplemental Statement of the Case, which includes a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. The Veteran and his representative will be afforded a reasonable period in which to respond, and the record will then be returned to the Board for further appellate review, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter 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 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 C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs