Citation Nr: 1334223	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO. 08-34 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an increased rating in excess of 40 percent for a service-connected low back disability.

2. Entitlement to service connection for chronic pain syndrome, to include as secondary to a service-connected low back disability.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1980 to December 1982.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the RO denied an increased rating in excess of 40 percent for the Veteran's service-connected low back disability and denied service connection for chronic pain syndrome.

The Board finds that the record raises an inferred claim for TDIU. In order for a TDIU claim to be raised by inference, a claimant must submit evidence of a medical disability, make a claim for the highest rating possible, and submit evidence of unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Further, where evidence of unemployability is submitted in connection with the appeal of an assigned disability rating, a claim for TDIU will be inferred as "part and parcel" of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran stated in her April 2007 claim that her low back disability prevents her from fully performing her job. Reading that statement liberally, the Board finds a claim for a TDIU has been raised and is under its jurisdiction. As such, the issue has been added to the title page.

The Veteran requested a Board hearing at a local VA office on her October 2008 substantive appeal. However, in a signed form received in September 2011, the Veteran withdrew her request for a Board hearing. Therefore, the fact that the Veteran was not provided with a hearing is not an error.

The Virtual VA and VBMS electronic claims files associated with the Veteran's claims have been reviewed and all relevant evidence therein taken into account.

The issues of entitlement to an increased rating in excess of 40 percent for a low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran has a currently diagnosed disability underlying her complaints of pain that is distinct from her already service-connected low back disability.


CONCLUSION OF LAW

The criteria for service connection for chronic pain syndrome have not been met. 38 U.S.C.A. §§ 1101, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veteran's Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in October 2007, prior to the initial unfavorable adjudication in August 2008. This letter advised the Veteran of what evidence was necessary to substantiate her claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service treatment records with the claims file. All other identified and available post-service treatment records have been obtained. As there are no other outstanding identified records, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in August 2010. The examination was adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, conducted a thorough medical examination of the Veteran, and provided a sufficient supporting rationale for the opinion. Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision with respect to the Veteran's claim for service connection for chronic pain syndrome. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Although an examination specifically concerning the Veteran's complaints of chronic pain syndrome was not provided, the Board finds the VA did not have a duty to provide one. First, the Veteran has stated that her chronic pain syndrome is specifically a result of her low back disability, which was evaluated in the August 2010 examination. Therefore, the August 2010 examination concerning her low back disability also encompassed her complaints of chronic pain syndrome as a result of her low back disability. Second, the Veteran does not have a current diagnosis for chronic pain syndrome. In order for VA's duty to provide an opinion  to be triggered, the Veteran must have a currently diagnosed disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the threshold issue of a current diagnosis has not been met, VA was not obligated to provide a VA medical opinion with respect to the Veteran's claim of chronic pain syndrome.

Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.

II. Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires competent evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Barr, 21 Vet. App. at 307; Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995).

An essential element of any service connection claim is the establishment of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that there cannot be a valid claim without proof of a present disability). Although a claimant may report experiencing additional pain, which is attributed to a service-connected disability, without a diagnosed or identifiable underlying malady or condition pain alone does not in and of itself constitute a disability for which service connection may be granted, even on a secondary basis. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir. 2001). 

Under certain circumstances, lay statements may be sufficient for service connection by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are lay observable. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

In this case, neither direct nor secondary service connection for chronic pain syndrome is warranted. A diagnosed condition must underlie a Veteran's complaints of pain in order for direct or secondary service connection to be granted. See Sanchez-Benitez, 13 Vet. App. at 285. The competent medical evidence of record does not show that the Veteran has been diagnosed with chronic pain syndrome or any other disease underlying her complaints of pain. While pain and chronic pain are often mentioned in the Veteran's medical records, they are mentioned solely in relation to the Veteran's service-connected low back disability, and not as an independent disease. Rather, pain is a symptom of her service-connected low back disability. 

While the Veteran is competent to report she is experiencing pain, there is no diagnosed disease to which the reported pain can be attributed other than her already service-connected low back disability. The Veteran herself states that the pain is related to her low back, and does not report another disease or condition that could be responsible for her chronic pain. As there is no lay or medical diagnosis of an underlying disease, the Veteran's statements are simply subjective complaints of pain, which are not sufficient to establish a current diagnosis for the purposes of service connection. Id. Since a current disability has not been established, service connection cannot be granted on a direct or secondary basis for the claimed chronic pain syndrome. See Brammer, 3 Vet. App. at 225.

The preponderance of the evidence weighs against a finding that the Veteran has a current disability separate from her already service-connected low back disability, and therefore there is not a valid claim for direct or secondary service connection. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.310; Brammer, 3 Vet. App. at 225. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for chronic pain syndrome, to include as secondary to a service-connected low back disability, is denied.


REMAND

The Board must remand the Veteran's claims for an increased rating in excess of 40 percent for a service-connected low back disability and for TDIU for new VA examinations, additional notice, and further development of the record.

During the Veteran's August 2010 VA examination, it was found that she had forward flexion of the thoracolumbar spine of 10 degrees, extension of 5 degrees, left lateral flexion of 5 degrees, left lateral rotation of 5 degrees, right lateral flexion of 10 degrees, and right lateral rotation of 5 degrees. The examiner was unable to conduct repetitive testing due to the Veteran's sever back spasms, which caused her to become unsteady on her feet. A new orthopedic examination is necessary to determine whether the Veteran's range of motion is so limited, when taking into account functional loss due to pain after repetitive use, flare-ups, weakness, excess fatigability or incoordination, that it is the functional equivalent of ankylosis. If so, it should also be determined whether the ankylosis is favorable or unfavorable.

During her August 2010 examination, the Veteran stated that she had missed approximately twelve weeks of work in the past twelve months because of her back pain, which required her to use Family Medical Leave Act (FMLA) leave. The use of FMLA typically requires medical evidence demonstrating the necessity of the leave. Efforts must be made to obtain this relevant medical evidence.

The Veteran was most recently diagnosed with degenerative disk disease (DDD) during her August 2010 VA examination. As such, the Veteran's low back disability can be rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). See 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under the General Formula, any objective neurological abnormalities associated with a disability rated under the General Formula must be rated separately. See 38 C.F.R. § 4.71a, General Formula, Note 1. The Veteran complained of radiating pain in both of her legs in her April 2007 claim. During her August 2010 VA examination, she reported a history of radiating pain, paresthesias, leg or foot weakness, and falls. The VA examiner noted Lasegue's sign was positive in both legs and other objective indications of pain, although reflexes were noted as being within normal limits. These facts indicate the possible presence of neurologic abnormalities. Therefore, the Board must remand so the Veteran can be scheduled for a neurological examination to determine the nature and severity of any abnormalities.

As discussed above, the Board finds an inferred claim for TDIU is raised by the record based on a complaint of an inability to perform her current job due to her service-connected low back disability. See Roberson, 251 F.3d at 1384; Rice, 22 Vet. App. at 453-54. She has received no notice regarding that claim and appropriate development has not been conducted. Therefore, the Board must remand the claim so proper notice can be provided and any necessary development undertaken, to include a medical opinion.

While on remand, efforts must be made to obtain any relevant VA treatment records from April 2010 forward, as well as any further treatment records identified and authorized for release by the Veteran.

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide her with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that she provide the requisite information.

2. Request that the Veteran produce or identify any medical records underlying her use of FMLA leave due to her service-connected low back disability, to include treatment for her low back and prescribed bed rest.

3. Obtain any further VA treatment records concerning the Veteran's low back disability from April 2010 forward, as well as any additional treatment records identified and authorized for release by the Veteran.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able.

4. After undertaking the development listed above to the extent possible, schedule the Veteran for appropriate examination(s) to ascertain the current level of severity of her service connected low back disability, to include both orthopedic and neurological manifestations. The claims file should be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. 

After reviewing the claims files and examining the Veteran, the examiner should also answer the following questions:

a) Whether the Veteran's thoracolumbar range of motion, in light of functional loss due to pain after repetitive use, flare-ups, weakness, excess fatigability or incoordination, is limited to the point that it is the functional equivalent of ankylosis of the thoracolumbar spine?

b) If yes, is the ankylosis favorable or unfavorable?

A detailed rationale supporting the examiner's opinion should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should fully explain why that is so. In forming the opinion, the examiner should consider the Veteran's lay statements, the November 2005 doctor's letter diagnosing the Veteran with unfavorable ankylosis, and the August 2010 VA examination findings.

5. After the above development is completed, forward the claims file to an appropriate examiner for review in order to determine whether the Veteran's service-connected disabilities, individually or in concert, render the Veteran unable to secure or follow a substantially gainful occupation. For the purposes of the examination, substantially gainful employment does not include marginal employment.

6. Thereafter, readjudicate the issues on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs