Citation Nr: 1330904 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 06-11 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative (discogenic) disc disease (DDD), including as secondary to service-connected lumbar strain with myositis. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1979 to July 1982 and from February 2003 to August 2004, and also had Reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision that, in pertinent part, denied secondary service connection for degenerative joint disease (DJD) and discogenic disease changes L4-L5, small central disc protrusion, posterior facet joint degenerative changes; and a May 2006 rating decision that denied entitlement to a TDIU rating. In June 2009, the Board granted service connection for lumbar DJD, remanded for further development the issue of service connection for lumbar spine degenerative disc disease (DDD) the matter of entitlement to a TDIU rating. These matters were again before the Board in October 2011 and April 2013 when they were remanded for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of a TDIU is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if action on his part is required. FINDING OF FACT The Veteran's lumbar spine DDD is reasonably shown to have become manifest during a period of his active duty service. CONCLUSION OF LAW Service connection for lumbar spine DDD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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). The VCAA applies to the instant claim. However, inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice or omission in duty to assist is harmless. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 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); 38 C.F.R. § 3.102. The Veteran contends that he has DDD of the lumbar spine linked to an injury in service. Specifically he asserts that his low back pain began in 1982 when he fell from a truck on his back while on duty in Germany. He claims that ever since that time, he has been suffering from low back pain that had worsened with time. He claims alternatively that his DDD of the lumbar spine is secondary to his service-connected lumbar strain, myositis disability (an August 1983 rating decision granted service connection for lumbar strain and myositis based on his first period of active duty). In August 2004 (the month of his discharge from his second period of active duty service) the Veteran filed a claim of service connection for degenerative joint disease (DJD) and discogenic disease changes at L4-L5, small central disc protrusion, posterior facet joint degenerative changes as secondary to his service-connected disability of chronic active lumbar strain myositis that was denied by the RO in a May 2005 rating decision. The Board's June 2009 decision granted service connection for lumbar spine DJD and remanded for further development the matter of service connection for DDD of the lumbar spine. Postservice treatment records (following his the first period of active duty and prior to his being called to active duty in February 2003) note that the Veteran continued to complain of low back pain. August 1982 and March 1993 X-rays of the lumbar spine were normal. July 2000 X-rays of the lumbar spine revealed anterior lipping at some segments; the vertebral bodies were normal in height and alignment, and disc spaces were preserved. The impression was early spondylosis. A February 2001 CT [computed tomography] scan of the lumbar spine was interpreted as normal. On February 2003 VA examination, just days prior to the Veteran's return to active duty, it was noted that he had complaints of low back pain without radiation to the lower extremities. The examiner noted that a November 2001 CT scan was normal. The diagnosis was paravertebral lumbar myositis. STRs' from the Veteran's second period of active duty note he continued to experience low back pain. A December 2003 record shows he complained of, and had medication prescribed for, persistent low back pain. A narrative summary of an April 2003 examination, with update in March 2004, notes he returned to active duty in February 2003 with a military occupational specialty (MOS) of truck driver. He had a long history of low back complaints. He complained of early morning stiffness and difficulty with prolonged standing or sitting (which were required by his MOS). He endorsed a number of Waddle's sign, including tailbone pain, whole leg numbness, and occasional giving way of the left leg. A February 2004 treatment record notes he had an exacerbation of low back pain. He reported that he had increased low back pain in the past month, and that in the prior week he had low back pain with radiation after prolonged sitting; he was seen in an emergency room for the pain. In March 2004, he was referred for physical therapy due to worsening low back pain. He stated he had difficulties with standing and leg stiffness after driving. In April 2004, he was scheduled for a low back MRI [magnetic resonance imaging]. His medical history included radiculopathy, dysesthesias, and paresthesias. A closed MRI could not be completed because he was severely claustrophobic. A September 2004 open MRI on referral by VA revealed discogenic disc disease changes seen at L4-L5 level associated with a small central disc protrusion producing mild impression upon the thecal sac. There were also mild posterior facet joint degenerative changes seen at L4-L5 and L5-S1 levels. On October 2004 VA examination findings included pain with thoracolumbar motion. The examiner noted the September 2004 MRI finding of lumbar DDD. It was noted that a 2001 CT scan showed normal facet joints and no discogenic disease. The diagnoses included discogenic disease changes at L4-L5. In an April 2005 addendum the October 2004 examiner opined that the Veteran's lumbar DDD and discogenic disease were not caused by or related to his service-connected lumbar strain with myositis. A report of April 2005 Physical Evaluation Board (PEB) Proceedings notes the Veteran had chronic subjective back pain without neurologic abnormality or limitation of thoracolumbar motion with 3/5 Waddell's signs. Based on a review of the objective medical evidence of record, the findings of the PEB were that his medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty. He was released from active duty as he was found unfit by reason of physical disability. The Veteran is presumed to have been sound as to lumbar DDD when he entered on active duty in February 2003. See 38 C.F.R. § 1111. The opinion that such disability is not related to his service connected myositis/lumbar strain is immaterial. During service in 2003-2004 the Veteran began manifesting complaints that culminated in his diagnosis of lumbar DDD by open MRI in September 2004 (approximately 1 month after service discharge). It is noteworthy that during service it was determined that the complaints warranted an MRI study, but such study could not be completed due to the Veteran's claustrophobia (and an open MRI apparently was not then available). It is reasonable to conclude that the findings on open MRI so soon after service represented pathology that was present (and manifested by the complaints noted) during service. Consequently, service connection for lumbar spine DDD is warranted. ORDER Service connection for lumbar spine DDD is granted. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his TDIU claim. See 38 C.F.R. § 3.159. In October 2005 the Veteran filed an application for increased compensation based on unemployability. He claimed that his service-connected disabilities of sleep apnea, back, and high blood pressure prevented him from securing or following any substantially gainful occupation. He reported he last worked full-time as a truck driver for the Army Reserves and became too disabled to work in 2003. He noted that he was discharged from the Army, with 26 years of service, due to his service-connected disabilities. Evidence in the record shows he has been unemployed since August 2004. His service-connected disabilities are obstructive sleep apnea, rated 50 percent, chronic active lumbar strain, myositis, rated 20 percent, lumbar spine DJD, rated 10 percent, tinnitus, rated 10 percent, hypertension, rated 10 percent, depressive disorder, rated 10 percent, right forearm stab lesion with retained metallic fragment and scar, rated 0 percent, and right foot calcaneal enthesopathy, rated 0 percent, for a combined rating of 70 percent. And this decision grants service-connection for lumbar spine DDD (which award will be implemented by the RO). On September 2009 VA mental disorders examination, the examiner noted that the Veteran's mental disorder symptoms are not severe enough to interfere with occupational functioning. On November 2011 VA general medical examination, the examiner opined (based on records review history and physical examination) that the Veteran would not be able to work in his usual job as a truck driver but that he was able to perform and secure a job requiring a sedentary to light or moderate duty employment based on his service-connected disabilities alone if he so chose. He noted that the Veteran could perform an administrative job as a clerk doing office work or answering telephones, or a job in which he could adjust or change body position with restriction in pushing, pulling, lifting, or carrying objects more than 10 pounds repeatedly during an 8-hour work day; he could not sit or stand for more than 2 hours straight without taking 15-minute breaks. The record does not include a medical professional's opinion regarding the combined effect of the Veteran's service connected disabilities on his employability; and there is no opinion that discusses the impact of the Veteran's sleep apnea (which based on the 50% rating assigned is his most significant service connected disability) on his employability. An examination to secure such opinions is needed. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for any necessary development, and then implement the Board's award of service connection for lumbar disc disease. 2. Thereafter, the RO should arrange for the Veteran to be examined by an appropriate physician to assess the cumulative effect his service-connected disabilities (which now include lumbar DDD) have on his ability to maintain substantially gainful employment. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran the examiner should provide an opinion that responds to the following: Are the symptoms and associated impairment of the Veteran's service-connected disabilities (obstructive sleep apnea, lumbar strain with DJD and DDD, depressive disorder, tinnitus, hypertension, right forearm stab injury residuals, and right foot calcaneal enthesopathy) of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and work experience? The response should include some discussion of the specific functions impaired by the service-connected disabilities (specifically including sleep apnea). The examiner should provide examples of the types of employment that would be precluded by or inconsistent with the service-connected disabilities and those types of employment, if any, that remain feasible despite the disabilities. The examiner must explain the rationale for all opinions. 2. The RO should then review the record and readjudicate the claim for a TDIU rating. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs