Citation Nr: 1338526 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-30 646 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to an initial compensable rating for low back pain with spondylosis. 3. Entitlement to a rating in excess of 10 percent for low back pain with spondylosis, effective August 10, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1981 through July 2005. This case was before the Board of Veterans' Appeals (Board) in June 2011 and remanded to the VA Appeals Management Center (AMC) in Washington, D.C. Following the development, the AMC confirmed and continued its denial of entitlement to service connection for a heart disorder and the initial noncompensable rating for the Veteran's service-connected low back disorder. The AMC raise the rating for his low back disorder to 10 percent, effective August 10, 2011. The 10 percent rating was not the maximum available for his low back disorder. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The decision did not terminate the Veteran's appeal. AB v. Brown, 6 Vet. App. 35 (1993). In July 2010, the Veteran had a hearing at the RO before an Acting Veteran Law Judge who has since retired from the Board. In December 2012, the Board notified the Veteran of his opportunity to have another hearing before a Veterans Law Judge who would participate in the decision. 38 C.F.R. § 20.707 (2013). However, the Veteran indicated that he did not wish to appear at another hearing and requested that VA consider his case based on the evidence of record. Accordingly, another hearing will not be scheduled. The transcript of the Veteran's hearing shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Acting Veterans Law Judge identified the material issue, permitted the Veteran's representative to question the Veteran, asked where he had been treated for a low back disorder and requested records of that treatment. The Acting Veterans Law Judge left the record open for 60 days, so that the Veteran could submit additional evidence to support his claim. At the end of the hearing, the Veteran stated that he had said everything he wanted to say and that he had been pleased with the hearing. For these reasons, the Board finds that there was no prejudice to the Veteran's increased rating claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). Medical inquiry as directed by the Board has not been completed and the issue of entitlement to service connection for a heart disorder is again REMANDED to the AMC. FINDINGS OF FACT 1. From August 1, 2005 through June 16, 2010, the Veteran's low back pain with spondylosis was manifested by painless flexion to 90 degrees and a combined range of painless lumbar spine motion to 300 degrees. 2. Since June 17, 2010, the Veteran's low back pain syndrome with spondylosis has been manifested, primarily, by pain, tenderness to palpation, and flexion to 80 degrees. CONCLUSIONS OF LAW 1. The Veteran's low back pain with spondylosis did not meet the criteria for an initial compensable rating, effective August 1, 2005 through June 16, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.31, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). 2. Effective June 17, 2010, the criteria were met for a 10 percent rating for low back pain with spondylosis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to an increased rating for low back pain with spondylosis. In April 2005, the RO received the Veteran's substantially complete application for entitlement to service connection for a low back disorder. Following the receipt of that application, the RO notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, the RO fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. In November 2006, the RO granted the Veteran service connection for low back pain with spondylosis and assigned a noncompensable evaluation, effective August 1, 2005. Because it is derived from the initial service connection claim, the issue of entitlement to an increase rating is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claim, such notice is not required. In December 2003, the VA General Counsel issued a precedential opinion stating that, if VA received a notice of disagreement (NOD) in response to a decision on a claim for which VA had already sent the Veteran a duty to assist letter, and the NOD raised a new issue (such as entitlement to an increased rating), the duty to assist the veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. VAOGCPREC 8-03. The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). VA has essentially complied with its duty to assist the Veteran in the development of his claim of entitlement to an increased rating for his service-connected low back pain with spondylosis. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The Veteran's low back disorder, diagnosed as low back pain with spondylosis (arthritis) at L5 is rated in accordance with 38 C.F.R. § 4.71, Diagnostic Code 5237. That is diagnostic code applicable to rating lumbar strain. A diagnostic code more reflective of the Veteran's low back disorder would be diagnostic code 5242, the diagnostic code applicable to rating arthritis of the lumbar spine. In either case, the rating criteria are set forth in a following general rating formula: General Rating Formula for Diseases and Injuries of the Spine The noted ratings may be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating is warranted for low back pain with spondylosis at L5, when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for low back pain with spondylosis at L5, when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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. 38 C.F.R. § 4.7. When, as in this case, an evaluation of a disability is based on limitation of motion, the Board must consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case) separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. During his July 2010 hearing, the Veteran testified that approximately two months earlier, he had experienced exacerbation of low back pain which required an immediate injection of pain medication as well as ongoing oral medication. The Board will in part grant the appeal. From his retirement on August 1, 2005 through June 16, 2010, the manifestations of the Veteran's service-connected low back disorder were relatively quiescent. Although he reported that his back disorder was aggravated by bending, lifting, and prolonged sitting, he did not receive treatment for that disorder. During a January 2006 VA examination, he reported infrequent episodes of non-radiating low back pain which occurred 2 or 3 times a year and lasted 2 to 3 days. However, they were resolved with medication and relaxation. In addition, he denied a loss of bowel or bladder control. Although X-rays taken by the VA in January 2006 showed levoscoliosis with lordosis, the Veteran demonstrated a normal gait and did not require aids to help him walk. He had a combined range of pain free, lumbar spine motion of 300 degrees. It consisted of flexion to 90 degree; extension to 40 degrees; lateral flexion to 35 degrees, bilaterally; and rotation to 50 degrees bilaterally. Repetitive motion was negative for any pain, fatigability, incoordination, or additional limitation of motion. There was no guarding of movement, and no tenderness to palpation. There were no motor or sensory changes in either of his lower extremities, and his deep tendon reflexes at the knees and ankles were normal at 2+ and equal, bilaterally. In addition, there was no evidence of muscle spasm or of a vertebral body fracture with loss of 50 percent or more of the height. For the majority of the time from August 1, 2005 through June 16, 2010, the Veteran's service-connected back disorder was pain free and, generally, asymptomatic. The Veteran did not complain of or receive treatment for his service-connected low back disorder. His range of back motion, including that on repetitive testing, did not meet or more nearly approximate the criteria for a compensable rating. Accordingly, the initial noncompensable rating is confirmed and continued for the period from August 1, 2005 through June 16, 2010. On June 17, 2010, the Veteran experienced an episode of back pain so severe that he required an immediate injection of pain medication for relief. Thereafter, he continued to receive treatment, primarily, from the North Bay Family Practice Clinic and through the Sutter Pacific Medical Foundation. During treatment in August 2010, it was noted that his back interfered with all of his activities; and during treatment in March 2011, he reported radiating low back pain and muscle spasm. His regimen included physical therapy and prescription pain medication. This objective evidence of pain met or more nearly approximated the criteria for a 10 percent rating, effective June 17, 2010. 38 C.F.R. § 4.59. The evidence is therefore in an approximate balance of evidence both for and against the Veteran's claim. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. Accordingly, the appeal is granted to the extent indicated. In arriving at this decision, the Board has considered the possibility of a still-higher schedular rating. Although the Veteran had tenderness to palpation of the lumbar spine, an August 2011 VA examination showed that he continued to be able to flex his spine to 80 degrees and that he had a combined range of lumbar spine motion of 270 degrees. Moreover, during repetitive testing, he demonstrated no significant pain, fatigability, lack of endurance, or additional limitation of motion. In addition, the Veteran continued to be free of objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. The August 2011 VA examiner noted deficits in the deep tendon reflexes in the Veteran's lower extremities. However, the examiner stated that such findings did not match the rest of the clinical examination and that he was, therefore, unable to confirm the presence of radiculopathy. Despite the notation of muscle spasm, it was not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Finally, it was noted that the Veteran continued to work, he was able to drive, and he was able to climb stairs. On balance, the foregoing findings do not meet the schedular criteria for a rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Accordingly, that rating is continued. In arriving at these decisions, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected PTSD. 38 C.F.R. § 3.321(b)(1) (2013). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating low back pain with spondylosis specifically contemplates the symptoms of the Veteran's service-connected low back disorder: pain, limitation of motion, and muscle spasm. 38 C.F.R. §§ 4.71a, Diagnostic Code 5242. In short, the Veteran does not have symptoms associated with his service-connected low back disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is against a finding that the Veteran's service-connected low back disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) . ORDER Entitlement to an initial compensable rating for low back pain with spondylosis is denied for the period from August 1, 2005 through June 16, 2010. Effective June 17, 2010, entitlement to a 10 percent rating for low back pain with spondylosis is granted, subject to the law and regulations governing the award of monetary benefits. REMAND With respect to the issue of entitlement to service connection for a heart disorder, the case is remanded for the following development to the VA Appeals Management Center (AMC) in Washington, D.C.: 1. The AMC must ask the Veteran to identify the names and addresses of any government (retired military force) VA or non-VA health care providers who have treated him or facilities where he has been treated since August 2011 for his claimed heart disorder. The AMC must then contact the identified health care providers and/or facilities DIRECTLY and request the Veteran's treatment records. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the requested records are unavailable and are held by an entity not associated with the federal government, the AMC must notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 2. AFTER RECEIPT OF THE ABOVE INFORMATION OR THE PASSAGE OF A REASONABLE AMOUNT OF TIME, RETURN THE CLAIMS FOLDER, ANY DOCUMENTS STORED IN "VIRTUAL VA" ELECTRONIC SYSTEM OR VBMS TO THE AUGUST 2011 VA examiner. ADVISE THE EXAMINER AS FOLLOWS THAT THE PURPOSE OF THE INQUIRY IS TO DETERMINE IF THE VETERAN HAS AN ENLARGED HEART, OR AN ORGANIC DISORDER OF THE CARDIOVASCULAR SYSTEM OTHER THAN HYPERTENSION. If the Veteran had an enlarged heart or an organic disorder of the cardiovascular system. other than hypertension, the examiner MUST STATE AND EXPLAIN whether the cardiovascular disorder (i) was incurred in service, or (ii) was manifested in service, or (iii) was etiologically related to the Veteran's lengthy active service, or (iv) was secondary to or aggravated by the Veteran's service-connected hypertension? The examiner's attention is called to in-service borderline abnormal EKG's, performed in November 1993, February 1999, and November 2004, or by the chest pain and pressure noted in January 2003. THE EXAMINER MUST comment on the Veteran's lay statements as to onset of a cardiovascular disorder other than hypertension, as to whether there exists a clinical (objective) basis for these statements. 3. IN THE EVENT THAT THE AUGUST 2011 VA EXAMINER IS UNAVAILABLE, schedule the Veteran for a cardiovascular examination to FULLY RESPOND TO THE INQUIRIES IN PARAGRAPH 2, ABOVE. 4. When the actions above have been completed, the AMC must undertake any other indicated development. Then, the AMC must readjudicate the issue of entitlement to service connection for a heart disorder, to include any appropriate theories of entitlement (direct and secondary service connection). If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AMC. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs