Citation Nr: 1335899 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-39 708 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for the service-connected degenerative joint disease of the lumbar spine. 2. Entitlement to a compensable rating for the service-connected bilateral hearing loss. 3. Entitlement to service connection for claimed headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active service from April 1970 to April 1990. This included service in the Republic of Vietnam from September 1970 to September 1971. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the RO. In March 2010, the Veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO. In its decision in January 2012, the Board referred the issue of a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability to the Agency of Original Jurisdiction (AOJ) because it did not have jurisdiction. The Board once again refers this matter to the attention of the AOJ. In a January 2012 decision, the Board denied the claim for an increased rating in excess of 20 percent for the service-connected degenerative joint disease of the lumbar spine. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 Memorandum Decision, the Court found that the Board failed to provide an adequate statement of reasons and bases for its decision that a staged rating was not warranted in light of the findings of the VA examination in March 2005 that the Veteran had forward flexion of the lumbar spine that was limited to 30 degrees. Thus the Court vacated the decision and remanded the issue to the Board for consideration of whether a staged rating was warranted. The records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. In January 2012, the Board had also remanded the issue of an increased rating for the service-connected bilateral hearing loss and the claim of service connection for headaches for additional development; however, further development remains necessary with respect to these issues. Thus, these issues along with the matter of an increased rating for the service-connected low back disability beginning on March 25, 2005 are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the initial period of the appeal, the service-connected low back disability is shown to have manifested forward flexion of the thoracolumbar to 40 degrees with pain and additional loss of motion on repetitive use due to pain, fatigue, weakness, and lack of endurance that more nearly approximates that of flexion restricted to 30 degrees or less; neither ankylosis, nor incapacitating episodes due to intervertebral disc syndrome is demonstrated. CONCLUSION OF LAW For the initial period of the appeal, the criteria for the assignment of a 40 percent rating for the service-connected degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication and post-adjudication VCAA notice by letters, dated in January 2005 and March 2006 (See Virtual VA for March 2006 notice). The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and the effective dates. To the extent that the March 2006 VCAA notice pertaining to degree of disability and effective date came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim of an increased rating in excess of 20 percent for degenerative joint disease of the lumbar spine was readjudicated by the Statement of the Case, dated in November 2006. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, the Veteran was afforded a VA examination in March 2005. In the January 2006 Notice of Disagreement, the Veteran contended that his service-connected low back disability warranted a 40 percent rating and that the March 2005 VA examination was inadequate because the examiner made inappropriate comments. The Board finds that the March 2005 VA examination is fully adequate and there is no prejudice to the Veteran as the examiner provided range of motion findings, conducted a neurological evaluation, and considered the Veteran's lay statements and subjective complaints. To the extent that the Veteran asserts that he is entitled to a 40 percent rating based on this examination, this will addressed. During the Board hearing, the undersigned discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with the VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). As the Veteran has not identified any additional evidence pertinent to the claim and there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist as to the claim for increase for the initial period of the appeal. Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As the issue on appeal is for a higher rating, consideration of whether the criteria for the current rating is met is not necessary and the analysis below focuses on whether the Veteran meets the criteria for higher ratings. The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The Veteran's service-connected degenerative joint disease of the lumbar spine has been rated under Diagnostic Code 5237. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): a 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 45 degrees, extension to 45 degrees, lateral flexion, right and left, to 45 degrees, and rotation, right and left, to 80 degrees. 38 C.F.R. § 4.71a, Plate V. Analysis Prior to March 24, 2005, during the initial period of this appeal, the evidence includes that of a VA progress note dated in April 2004 and the report of a VA examination in March 2005. The Board finds that, for this initial time, the service-connected low back disability picture more close resembles the criteria for the assignment of a 40 percent rating. On VA examination in March 2005, the Veteran's ability to perform forward flexion was noted to be from 0 to 40 degrees with pain at 40 degrees and notation by the examiner that there was additional loss of motion on repetitive use due to pain, fatigue, weakness, and lack of endurance. These findings, in the Board's opinion, essentially equate with a disability picture manifested by flexion of the thoracolumbar spine restricted to 30 degrees or less when considering the criteria in 38 C.F.R. §§ 4.40, 4.45, 4.59; and DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, on this record, the Board finds that, at least for this initial portion of the appeal, a 40 percent rating is for application under the provision of Diagnostic Code 5237 based on functional loss due to pain. To the extent that the record includes complaints of progressively worsening back problems with frequent pain during the examination, the Board finds that the severity of his service-connected low back disability in November 2004 was consistent with the findings of the March 2005 VA examination. Therefore, a rating of 40 percent is warranted for the service-connected degenerative joint disease of the lumbar spine. To the extent that the Veteran complained of radiating back pain, numbness and paresthesias during the March 2005 VA examination, the motor and sensory examinations were normal. See November 2004 VA treatment record. As there were no neurological findings substantiated with the lumbar spine disease, the evidence shows that there was no neurological impairment associated with the lumbar spine and thus a separate rating for neurological impairment is not warranted for this time. The Board has also considered the Veteran's lay statements that describe his back pain and discomfort. The Veteran is certainly competent to offer his observations that are found to be credible for the purpose of assigning this increased rating. For these reasons, after resolving the benefit of the doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), the Board finds that a rating of 40 percent for the service-connected degenerative joint disease of the lumbar spine is warranted under the General Formula for Diseases and Injuries of the Spine for the initial period of the appeal. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, to the extent that the action taken is favorable to the Veteran, the rating criteria are found to reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected degenerative joint disease of the lumbar spine. The Board finds that the service-connected low back disability is manifested by pain and limitation of motion and that the rating criteria contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1) at this time. ORDER A 40 percent rating for the service-connected degenerative joint disease of the lumbar spine is granted for the initial period of the appeal, subject to the regulations governing the payment of VA monetary benefits. REMAND In reviewing the evidence of record, the Board finds that the Veteran should be afforded a contemporaneous examination to determine the current nature and level of severity of his service-connected low back disability as he was last examined in August 2010. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran also was last afforded a VA audiological examination in January 2012 at The Hearing Center in Ashland Kentucky; however, the VA May 2013 audiology consultation noted that he reported that his hearing loss had worsened since the 2012 VA examination. As the evidence suggests a material change in the hearing loss disability since the Veteran was last examined by VA, a reexamination is necessary under 38 C.F.R. § 3.327. Lastly, the Board remanded the issue of service connection for headaches for a VA examination to fully address the impact of the service treatment records that documented the Veteran's headache manifestation. While an opinion was obtained in January 2012, the examiner in providing a negative nexus opinion did not completely address all the pertinent service treatment records, specifically the records dated in July 1986, December 1986 and February 1990 referring to headaches. Instead, the examiner found that recorded treatment for headaches since the Veteran's motor vehicle accident in 1983 until his discharge in 1990. As the requested development has not been fully completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him identify any outstanding medical records pertaining to treatment by VA or non-VA health care providers for the service-connected low back disability and hearing loss and the claimed headache disorder since 2010. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO then should have the Veteran scheduled for a VA examination to determine the current extent and severity of the service-connected degenerative joint disease of the lumbar spine. All indicated studies, including range of motion studies in degrees, should be performed. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of the service-connected lower back disability. Tests of joint motion against varying resistance should be performed, and the extent of any incoordination, weakened movement, and excess fatigability on use should be described, with a notation of any additional functional impairment. The examiner should identify any objective evidence of pain or functional loss due to pain. The examiner is asked to express an opinion whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the examiner should so state and provide an explanation why not. The examiner also should indicate whether there is favorable or unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine. The examiner is asked to describe the frequency and duration of any incapacitating episodes due to the low back disability, requiring bed rest prescribed by a physician and treatment by a physician, over a 12 month period. The examiner should specifically indicate whether there is any neurological impairment associated with the service-connected low back disability, to include bowel or bladder impairment. If there is neurological impairment the examiner should identify the nerve or nerves involved and determine whether there is symptomatology reflective of either complete paralysis; or mild, moderate, moderately severe, or severe incomplete paralysis of the affected nerve or nerves. The examiner is asked to provide a rationale for all opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 3. The RO then should have the Veteran scheduled for a VA audiometric examination to determine the current severity of the service-connected hearing loss. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examination of hearing impairment should be conducted without the use of hearing aids. The examination must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. For each ear, pure tone audiometric thresholds, in decibels, should be recorded for each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz, as well as controlled speech discrimination testing (Maryland CNC) (reported in percentages of discrimination). 4. The RO also should take all indicated action to contact the examiner who conducted the January 2012 VA examination (or if she is no longer available, a suitable replacement) to prepare an addendum to the medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the Veteran suffers from a current headache disability that had its clinical onset during his extensive period of service or otherwise is due to an event or incident of that service. The Veteran's VA claims folder must be made available to the examiner for review in connection with the preparation of the medical opinion and addendum. The examiner must address service treatment records that refer to headaches dated in February 1979, October 1981, July 1986, December 1986, and February 1990, as well as the report of medical history in February 1990 upon retirement from service whereby the Veteran checked the box indicating that he had "(f)requent or severe headache". The examiner should provide a rationale for the opinion. If the examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 5. After completing all indicated development, the RO then should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs