Citation Nr: 1329877 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-25 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a compensable disability rating for a lumbar contusion. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability, including as secondary to the service-connected lumbar contusion, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to May 1946. This appeal to the Board of Veterans' Appeals (Board) is from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. As support for his claims, the Veteran testified at a Travel Board hearing in August 2013 before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the Veteran's virtual claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). In this decision, the Board is reopening the service connection claim and denying the claim for an increased rating for the lumbar contusion. The merits of the service connection claim is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected lumbar contusion is not characterized by painful residuals as a result of partial or complete removal of the coccyx. 2. The RO denied the Veteran's claim of entitlement to service connection for a back disability other than lumbar contusion in a November 1987 rating decision. The Veteran was notified of the decision, but he did not file an appeal. 3. Evidence obtained since the November 1987 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability, other than the service-connected lumbar contusion. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected lumbar contusion are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a; Diagnostic Code 5299-5298 (2013). 2. The November 1987 rating decision which denied entitlement to service connection for a back disability other than lumbar contusion is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for a back disability other than lumbar contusion. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist under the Veterans Claims Assistance Act of 2000 (VCAA) As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a back disability is completely favorable, no further discussion is required concerning the VCAA and implementing regulations with respect to this issue. Consideration of the merits of the claim is deferred pending additional development. However, with respect to the Veteran's claim for an increased rating for his lumbar contusion, a discussion of VCAA compliance is warranted. Proper notice under this law includes informing 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements were met in a November 2010 letter. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding relevant records that have not been requested or obtained. Additionally, the Veteran was afforded numerous VA examinations in conjunction with the claim on appeal in December 2010, with an addendum in January 2011; May 2011; December 2011; March 2012; and, July 2012. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected lumbar contusion as they include interviews with the Veteran, a review of the record, and full physical examinations with diagnostic testing. They address the relevant rating criteria and his claim as it relates to entitlement to service connection. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's claim and no further examination is necessary. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim(s) based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist, and it may proceed to an adjudication of the claim. New and Material Evidence The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's claim of service connection for a back disorder was previously denied in a November 1987 rating decision. The Veteran did not file any statement indicating disagreement with the prior decision, or submit relevant evidence within one year following its issuance. In fact, the next statement received by VA from the Veteran was his October 2010 petition to reopen this claim. Accordingly, the November 1987 rating decision is now final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013). Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only needs to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior November 1987 determination, the evidence included the Veteran's VA treatment records, an October 1987 VA compensation examination, and statements in support of his claim. These records showed that the Veteran received treatment for back pain, and was diagnosed with degenerative joint disease (DJD) of the lumbar spine, as confirmed by x-ray findings. The RO denied the Veteran's claim because there was no evidence the Veteran's DJD of the lumbar spine was incurred in or aggravated by his military service, or related to the service-connected lumbar contusions. In October 2010, the Veteran filed a petition to reopen this claim. The evidence received since November 1987 RO denial of this claim includes VA treatment records dated through May 2011 showing ongoing back treatment, as well as the Veteran's August 2013 testimony that he received continuous treatment from separation from service in 1946 to the present for his back. The credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). As such, the Board finds that the testimony relates to a previously unestablished fact necessary to substantiate the Veteran's back disorder claim. Thus, the new evidence raises a reasonable possibility of substantiating the claim. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.38 C.F.R. § 4.7 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). The record shows that service connection for a back disability was denied in a May 1946 rating action. The Veteran had claimed service connection based on an injury sustained in a January 1946 motor vehicle accident in Germany. Because the Veteran's service separation examination revealed no abnormalities, the claim was denied since there was no disability. The Veteran sought to reopen the claim in 1954, and in a 1957 rating action service connection was established for a back/lumbar area contusion, effective from May 1946. It was evaluated as non-compensably disabling, as no impairment was shown to be related to it. Currently, the Veteran's disability is rated by analogy under DC 5299-5298. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). DC 5298 addresses the removal of the coccyx (i.e., tailbone. See Dorland's Illustrated Medical Dictionary, pp 1361 (31st ed. 2007). A 10 percent rating is warranted for partial or complete removal with painful residuals. A noncompensable rating is warranted for no painful residuals. In December 2010, the Veteran was scheduled for a VA compensation examination for his back. The Veteran stated he was diagnosed with a contusion after the incident during service in 1946, but does not recall any treatment. He complained of intermittent low back pain, which was worse with twisting or lifting'; pain diffusely across the low back; and, sharp, mild stiffness, and occasional pain in the his right leg and foot. He denied the use of assistive devices. He also denied any effects on employment or daily activities, no flare-ups, and no incapacitating episodes. X-rays showed diffuse osteoporosis and mild destroscoliosis of the thoracolumbar spine, with multilevel degenerative disc disease of the lumbar spine, greatest at L2-L3. The examiner concluded that a lumbar contusion is a self-limiting condition lasting several weeks to months. There was no current clinical objective evidence of a lumbar contusion or any residuals. In fact, the examiner stated that this condition had resolved completely with no residuals. A subsequent January 2011 addendum to this December 2010 examination concerns the service connection claim for a back disability, other than lumbar contusion, and is, therefore, not relevant to rating his currently service-connected disability. A May 2011 VA examination, conducted by the December 2010 examiner, produced the same findings: 1) That a lumbar contusion is a self-limiting condition lasting several weeks to months; 2) There was no current clinical objective evidence of a lumbar contusion or residuals; and, 3) The condition has resolved completely with no residuals. In December 2011, the Veteran was again scheduled for a VA compensation examination. At that time, the Veteran complained of pain over the lower lumbar and sacral area, with intermittent pain down the right leg brought on by lifting and twisting. He denied numbness and weakness in the legs. He stated he takes one pain pill a day. After an objective physical examination and a review of the claims file, the examiner noted that the Veteran's lumbar contusion is a self-limiting condition lasting several weeks to months, and that there was no current clinical objective evidence of lumbar contusion or residuals. Finally, the examiner noted the Veteran was employed as a security guard, but did state that he was limited to lifting 25 pounds. A subsequent March 2012 addendum opinion and a July 2012 VA examination again concerned only the Veteran's service connection claim for a back disability, other than lumbar contusion, and its relation to service, if any. Therefore, this March 2012 addendum opinion and July 2012 examination are not relevant to rating his currently service-connected contusion of the lumbar spine disability. Finally, private treatment records dated from June 2007 to July 2009, and VA treatment records dated through October 2012 show treatment for the Veteran's back. However, there is no indication in these records that the treatment sought pertains to the service-connected contusion of the lumbar spine, as opposed to the diagnoses of DJD of the lumbar spine and osteoporosis. In any event, they make no mention that the Veteran suffers from painful residuals associated with his service-connected contusion of the lumbar spine. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b) ; Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Accordingly, the Veteran is competent to describe the symptoms associated with his lumbar contusion, such as pain in his lower back, as he testified to during his August 2013 hearing. However, nothing in this lay evidence suggests that he suffers from painful residuals associated with the contusion of the lumbar spine, as opposed to his diagnosed osteoporosis and degenerative joint disease of the lumbar spine, in order to meet the criterion for a compensable rating. In fact, the several examinations and opinions contained in the claims file specifically determined that the Veteran's contusion to the lumbar spine is a self-limiting condition lasting several weeks to months, and there was no current clinical objective evidence of lumbar contusion or residuals. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the instant case, the evidence does not show that the Veteran suffers from painful residuals associated with the contusion his lumbar spine, or any residuals for that matter. As such, a staged rating is not applicable. Overall, the Board finds that the probative medical evidence establishes that the Veteran's service-connected contusion of the lumbar spine is not manifested by painful residuals. Clearly, the Veteran has reported back pain and radicular complaints. However, the issue of whether the Veteran is entitled to service connection for a back disability, other than contusion of the lumbar spine, is the addressed in the remand below. Despite the Veteran's complaints of pain, multiple physicians have determined that he does not suffer from any residuals associated with his contusion of the lumbar spine. Therefore, an increased rating is not warranted. After a review of the entire record, the Board finds that the preponderance of the evidence is against the award of a compensable disability rating for the Veteran's service-connected lumbar contusion. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's rating disability for the service-connected lumbar contusion is rated based on the residuals as would be associated with partial or complete removal of a coccyx. See 38 C.F.R. § 4.71a, Diagnostic Code 5298. He is currently rated as noncompensable, however, a higher percentage is contemplated by the rating. This code allows a higher disability evaluation upon a showing of painful residuals, which the Veteran has been determined to not have as a result of this disability. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for an extraschedular rating is not warranted. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability. In this case, the December 2011 VA examiner noted that the Veteran was currently employed as a security guard and limited to lifting 25 pounds. Despite this limit, the fact remains that the Veteran was employed. Accordingly, Rice considerations are inapplicable in this case. ORDER New and material evidence having been received, the service connection claim for a back disability is reopened. To this extent only, the appeal is granted. Entitlement to a compensable rating for lumbar spine contusion is denied. REMAND As previously stated, the Veteran testified in August 2013 that he received VA treatment in Minneapolis on a continuous basis for his back from the 1940s to the present. However, the claims file does not have such a record of consistent treatment. Accordingly, a remand is required to ensure the record includes all of the Veteran's VA treatment since 1946. Under these circumstances, 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) (2013). Expedited handling is requested.) 1. Consistent with the Veteran's August 2013 testimony, that he had regular, periodic back treatment at the VA medical facility in Minneapolis since his service discharge, attempt to associate with the file the records of such treatment since 1946. If there are no such records for any particular period of time, that should be documented. 2. Schedule the Veteran for a VA examination to determine whether any current disability of the lumbar or thoracic spine may be related to the "severe contusion of the back" he sustained in a motor vehicle accident while in service in January 1946, as stated in his service treatment records. The claims file, should be made available for review of the Veteran's pertinent medical history. A complete rationale should be provided for the opinion obtained, and if it is not possible to provide the requested opinion without resort to speculation, the reasons for that should be explained. 3. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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. 2013). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs