Citation Nr: 1334759	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-01 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 40 percent for rotary levoscoliosis and intervertebral disc syndrome (IVDS) with narrowed disc space at L5-S1 with partial lumbarization of S1.

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


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel


INTRODUCTION

The Veteran had active service from September 1967 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision adjudicated by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and issued by the RO in Decatur, Georgia (Atlanta), increasing the Veteran's disability evaluation from 10 percent to 40 percent.  The jurisdiction of this case remains with the Atlanta RO.

The Veteran requested that he be scheduled for a Travel Board hearing in his appeal to the Board in January 2009.  However, in September 2011, the Veteran notified VA of his intent to withdraw his requested hearing.

In February 2012, the Board remanded these issues for additional development; they are again before the Board for further appellate review.

In October 2012, the Veteran submitted a statement that his leg pain had worsened.  In a June 2012 rating decision, the RO increased his disability ratings for his service-connected radiculopathy of the right and left legs to 20 percent each.  At this time, the RO informed the Veteran that his claim for an increase in disability rating for his service-connected leg disabilities as not on appeal.  As these issues are not currently before the Board, they are referred to the RO for additional development. 

The issue of entitlement to a 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.


FINDINGS OF FACT

The evidence does not reflect that the Veteran's service-connected rotary levoscoliosis and intervertebral disc syndrome with narrowed disc space at L5-S1 with partial lumbarization of S1 has been manifested by unfavorable ankylosis of the entire thoracolumbar spine.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 40 percent for rotary levoscoliosis and intervertebral disc syndrome with narrowed disc space at L5-S1 with partial lumbarization of S1 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a Diagnostic Code 5243 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, VA must inform 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. 

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Veteran was provided with a notification letter in August 2007 that informed him of what was needed to substantiate his claim, the evidence he was required to provide, and the evidence that the VA would obtain on his behalf.  In addition, the letter met the notice requirements set out in Dingess and the generic notice requirements set out in Vazquez.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

Post-service medical records have been associated with the claims file.  The Veteran was afforded VA examinations in August 2007 and March 2011 to determine the nature and severity of his service-connected back disability.  The Board finds that these examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in February 2012 in order to provide the Veteran a supplemental statement of the case (SSOC) with consideration of evidence added to the record since the most recent SSOC.  The RO issued the SSOC in September 2012.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.

Increased rating claims - laws and regulations

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.

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.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's service-connected back disability is service-connected under Diagnostic Code 5243, pertaining to IVDS.  IVDS is to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Incapacitating Episodes).

Under the General Formula, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2013).

The following notes accompany the General Rating Formula:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id.

Under the Formula for Incapacitating Episodes, for intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note one states that 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Veteran has contended that his service-connected back disability is more severe than is reflected by his current 40 percent disability rating.  In order to warrant a higher disability rating, the evidence would need to show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine.  None of the evidence of record reflects that this is the case.  VA medical records reflecting treatment for the Veteran's spine throughout the appeals period, and VA examination reports dated in August 2007 and March 2011 do not reflect ankylosis of the thoracolumbar spine.  

The Veteran has contended that he has increased pain in his back; however, he has not submitted any evidence that his service-connected lumbar spine disability is manifested by ankylosis of the entire thoracolumbar spine.  As such, a higher disability rating is not warranted.  

The benefit of the doubt doctrine has been considered in this case; however, as the preponderance of evidence is against the claim, that doctrine is not for application.  38 U.S.C.A. § 5107.

Extraschedular considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2013).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).   

Generally, the degrees of disability specified in the Rating Schedule 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.  38 C.F.R. § 3.321.  The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b).  The symptoms associated with the Veteran's service-connected spine disability are contemplated by the rating criteria set out in the General Formula and the Formula for Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  Thus, the evidence does not support referring this case for an extraschedular evaluation.
ORDER

A disability evaluation in excess of 40 percent for rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization of S1 is denied.


REMAND

The Veteran contends that he is unable to work due to his service-connected disabilities.  He last worked in 2008.  The Veteran is service-connected for rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization of S1 and associated radiculopathy of the left and right lower extremities.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).  

It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth above.  38 C.F.R. § 4.16(b). 

There is evidence of record that shows that the Veteran may be unable to work due to his service-connected disabilities.  He is in receipt of disability benefits from the Social Security Administration (SSA), due to disorders of the gastrointestinal system and to disorders of the back.  While the SSA's findings are not binding on VA or the Board, they are relevant and should be considered.  Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  In addition, the March 2011 VA examiner noted that the Veteran's service-connected back disability causes a decrease in his ability to find employment as a construction worker.  No opinion has been provided as to whether the Veteran's service-connected disabilities, on their own, cause the Veteran to be unable to secure or maintain employment.  As such, on remand, the Veteran should be provided with a VA examination to determine whether he is unemployable due to his service-connected disabilities only.

Prior to October 27, 2010, the Veteran did not meet the percentage requirements set out in 38 C.F.R. § 4.16 (a).  Since October 27, 2010, however, the Veteran has been service-connected for rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization of S1 at a 40 percent disability rating, right lower extremity radiculopathy associated with rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization at a 20 percent disability rating, and left lower extremity radiculopathy associated with rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization at a 20 percent, for a combined rating of 60 percent.  As these disabilities are all from a common etiology, these are to be considered as one disability for purposes of determining if the Veteran has met the percentage requirements under 38 C.F.R. § 4.16 (a).

As such, for the period prior to October 27, 2010, the RO/AMC should refer the Veteran's claim for a TDIU rating to the Director of Compensation and Pension Services for review to determine whether the Veteran's service-connected disabilities render him unable to work.  For the period beginning October 27, 2010, the RO/AMC should readjudicate the Veteran's claim for a TDIU, taking into consideration the findings of the VA examination.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine whether his service-connected disabilities prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him.  All indicated tests and studies should be conducted.

The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (rotary levoscoliosis and IVDS with narrowed disc space at L5-S1 with partial lumbarization of S1, and associated right and left lower extremity radiculopathy) would, collectively, prevent him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him.

The examiner must provide a rationale for each opinion.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  

The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be specifically acknowledged and considered in formulating any opinions.

If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so.

2.  After the above examination is completed, refer the Veteran's claim for TDIU to the Director of Compensation and Pension services for an extraschedular evaluation as to whether the Veteran was unemployable by reason of service-connected disabilities under 38 C.F.R. § 4.16(b) for the period prior to October 27, 2010.

3.  Readjudicate the Veteran's claim for a TDIU.  If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.

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).




______________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs