Citation Nr: 1335395 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-28 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for service-connected thoracolumbar spine disability. 2. Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Allen Gumpenberger, agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1991 to August 1995. These matters are before the Board of Veterans' Appeals (the Board) on appeal, in part, from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winton-Salem, North Carolina. By that rating action, the RO continued a 20 percent disability rating assigned to the service-connected low back disability. The Veteran appealed the continuation of a 20 percent rating assigned to the above-cited service-connected thoracolumbar spine disability to the Board. The Veteran had an informal conference with a Decision Review Officer (DRO) in October 2011. A copy of an informal conference report has been associated with the claims file. By a December 2012 rating action, the RO, in part, granted service connection for an acquired psychiatric disorder and assigned an initial 50 percent disability rating was assigned, effective September 28, 2011. The Veteran disagreed with the initial 50 percent disability rating assigned to the service-connected acquired psychiatric disorder. See Veteran's (then) representative's statement, received by the RO in February 2013). The RO has not issued a statement of the case (SOC) that addresses the above-cited initial evaluation claim. The Board notes that, where a claimant files a notice of disagreement and the RO has not issued a SOC, the issue must be remanded to the RO for a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). A review of the record also shows that a January 2013 letter to the Veteran advised him that he had failed to submit new and material evidence to reopen a claim for service connection for right knee disability. However, there was no actual rating decision that addressed that issue. Such was noted in a July 2013 Report of Contact. That report also contains the instruction to RO personnel to review the claims file to apparently make a proper decision. In May 2013, the Veteran's agent submitted VA Form 21-22, Appointment of Individual As Claimant's Representative, to reflect a change in the accredited agent in the Veteran's appeal. This form has been uploaded to the Veteran's Virtual VA electronic clams file. The Board has implemented the Veteran's change in representation as reflected on the title page of the decision. The issues of entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right shoulder disability 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 Even in consideration of his complaints of pain and limitation of function, the Veteran's thoracolumbar spine disability has not resulted in forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes that have required bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5237-5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Before addressing the merits of the issue on appeal, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a pre-adjudication letter, dated in August 2009, of how VA determines disability ratings and effective dates, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements. Nothing more was required. The Board also notes that the Veteran has actively participated in the processing of his appeal, and his statements submitted in support of his increased evaluation claim decided in the decision below, to include from his accredited representative and friends have indicated familiarity with the requirements for the benefit sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has also fulfilled its duty to assist the Veteran. Service treatment records (STRs) and post-service private and VA treatment and examination reports have been associated with the claims files, to include VA treatment reports. No outstanding evidence has been identified by the Veteran or his representative that has not otherwise been obtained. VA examined the Veteran to determine the current (then) severity of his thoracolumbar spine disability, most recently in January 2010. A copy of this VA examination report is contained in the claims files. The VA examiner recorded the Veteran's subjective complaints and identified the nature and severity of the thoracolumbar spine disability. The findings contained in the examination report are adequate for VA adjudication purposes under the appropriate regulatory criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). A review of the January 2010 report reflects that the Veteran reported had sought treatment for his lumbar spine from a Dr. Q. M. in California. Thereafter, during an October 2010 Informal Conference and in an April 2011 letter, the Veteran was invited to submit private treatment records in support of his increased evaluation claim. Subsequently, VA received private treatment records that contained clinical findings, in part, referable to the Veteran's spine, dated from 2007 to 2012. These reports have been associated with the Veteran's physical claims file. The Board finds that no further assistance is warranted with respect to the above-cited increased evaluation claim. VA may proceed with the consideration of this claim in the analysis below. II. Laws and Regulations General criteria The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the increased evaluation claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, such as here, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). As will be demonstrated through the analysis below, the Veteran's thoracolumbar spine symptoms have remained constant throughout the course of the period on appeal as demonstrated by similar findings noted on private and VA treatment records and during a January 2010 VA examination. As such, staged ratings are not warranted for the Veteran's thoracolumbar spine disability. Hart, supra. 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. See 38 C.F.R. § 4.7. Orthopedic-rating criteria When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. The diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 20 (1995). Spine-rating criteria The Veteran's thoracolumbar spine disability is rated at 20 percent disabling throughout the entire rating period on appeal, pursuant to Diagnostic Codes 5237- 5243. 38 C.F.R. § 4.71, Diagnostic Codes 5235-5243. In order to warrant a higher (40 percent) rating, the evidence must show: * forward flexion of the thoracolumbar spine 30 degrees or less; * favorable ankylosis of the entire thoracolumbar spine; or * intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 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): For VA compensation purposes, 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 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. Moreover, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bedrest prescribed by a physician and treatment by a physician. III. Merits Analysis The Veteran seeks a disability rating in excess of 20 percent for his service-connected thoracolumbar spine disability. He maintains that he has had incapacitating episodes of 30 to 40 days due to his thoracolumbar spine disability; thus, an increased 40 percent rating is warranted. As noted above, to warrant a 40 percent rating under the General Ratings Formula, there must be evidence of flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Neither of these criteria has been met during the prescribed period. At a January 2010 VA examination, flexion of the lumbar spine was limited, at most, to 70 degrees. Contemporaneous VA and non-VA treatment records disclose no range of motion findings worse than those reported at the January 2010 examination. There is also no evidence of any ankylosis of the lumbar spine. Indeed, while range of motion is limited, the present level of range of motion does not indicate a fixation of the spine. Thus, because the Veteran's limitation of flexion has never been shown to be 30 degrees or less, nor is there evidence of favorable ankylosis of the entire thoracolumbar spine, the assignment of a higher 40 percent rating is not warranted for service-connected thoracolumbar spine is not warranted. Consideration has been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca in evaluating the Veteran's claim. The Veteran has complained of constant daily low back pain that rated at a 6 or 7 out of 10, with 10 being the highest degree of severity. He maintained that his spine symptoms were alleviated with medication and rest. See January 2010 VA spine examination report. Yet, that same report showed that the Veteran had forward flexion of the lumbar spine to 70 degrees. The VA examiner noted that the Veteran had pain on repetitive motion of the spine. The Board concedes that the VA examiner's description regarding the onset of pain is vague. Specific measurements that identify the points at which pain begins are preferable. However, in this case, the Board does not conclude that the VA examiner's vague description renders the January 2010 VA examination inadequate. The Veteran's forward flexion is substantially greater than what is necessary to warrant a rating in excess of what he is currently assigned, even considering pain. Moreover, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court recently clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Here, despite pain, weakness and fatigability, the Veteran was able to demonstrate 70 degrees of forward flexion of the thoracolumbar spine. Thus, even in contemplation of the tenets of 38 C.F.R. §§ 4.40 and 4.45, the Board finds the above evidence does not support a 40 percent evaluation. Turning to a possible increased evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5243, concerning intervertebral disc syndrome based on incapacitating episodes, the Board has reviewed the Veteran's claims file and cannot find evidence of physician prescribed bedrest as required under the above-cited schedular criteria. The Veteran reported at his January 2010 VA examination that he had experienced incapacitating episodes, consisting of 30-40 days, in the past 12 month period. It is unclear whether or not this was bedrest prescribed by a physician. The VA examiner noted that the Veteran had sought treatment from a private physician, Dr. Q. M. While private treatment records, dated from 2007 to 2012, are contained in the claims file, they do not contain clinical evidence of physician prescribed bedrest for incapacitating episodes. Indeed, the Board's attention is drawn to private treatment records from March 2012 wherein it was noted that the Veteran was employed and on light duty. There was no reference to incapacitating episodes or missed work. The assignment of a 40 percent disability rating for intervertebral disc syndrome based on incapacitating episodes is not warranted. The Board has also considered whether a separate disability rating would be appropriate for neurological findings under the diagnostic codes pertinent to rating neurological disorders. Indeed, Note (1) under the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See Bierman v. Brown, 6 Vet. App. 125 (1994); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) [separate disabilities arising from a single disease entity are to be rated separately]. A separate service-connection award is already in effect for left leg sciatica. See December 2012 rating action. He did not appeal this decision; i.e., the rating that was assigned. A November 2011 VA examination report reflects that a VA examiner concluded that the Veteran did not have sciatica of the right leg. Private treatment records from March 2012 similarly indicated that there was normal motor and sensory testing. As such, the evidence of record does not reflect that any other additional neurological deficiency (other than the left lower extremity) exists that would warrant the assignment of a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. In deciding this claim, the Board acknowledges that the Veteran's and his friends' statements are competent to report observable symptoms of his low back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Neither Veteran nor his friends have demonstrated that they are competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected spine disability has been provided by the VA medical professional who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991 IV. Hart Considerations The Veteran's right low back symptoms have remained constant throughout the course of the period on appeal as demonstrated by similar findings on VA examinations in January 2010 and private and VA treatment records, dated from 2007 to 2012. As such, staged ratings are not warranted for the thoracolumbar spine disability. See Hart, supra. V. Total Disability Rating Based on Individual Unemployability due to service-connected disability (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran is employed full-time in dog training. (See January 2010 VA spine examination report). Thus, referral for TDIU is not warranted. VI. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. There has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's thoracolumbar spine disability was applied to the applicable rating criteria and case law. Although the applicable criteria provide for higher ratings, the Board fully explained why a higher rating was not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the above-cited disability include exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating in excess of 20 percent for service-connected thoracolumbar spine disability is denied REMAND By a December 2012 rating action, the RO, in part, granted service connection for an acquired psychiatric disorder and assigned an initial 50 percent disability rating was assigned, effective September 28, 2011. The Veteran was informed of the RO's decision in January 2013. The Veteran disagreed with the initial 50 percent disability rating assigned to the service-connected acquired psychiatric disorder. See Veteran's (then) representative's statement, received by the RO in February 2013. The RO has not issued SOC that addresses the initial evaluation claim. The Board notes that, where a claimant files a notice of disagreement and the RO has not issued a SOC, the issue must be remanded to the RO for a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, on remand, the RO should provide the Veteran with a SOC that addresses the initial evaluation claim. Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a SOC on the following issue: entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder. The issue should be returned to the Board only if the Veteran perfects a timely appeal. 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). These claims 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs