Citation Nr: 1342124 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-11 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for service-connected lumbar degenerative disc disease at L5-S1 with chronic lumbar strain. 2. Entitlement to a total disability evaluation based upon individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to February 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) at a November 2008 Travel Board hearing. A transcript of that hearing has been associated with the claims folder. The Board remanded the Veteran's appeal in February 2009 for further development, and in July 2011 and January 2013 for further compliance with remand directives. This claim now again returns to the Board. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. A September 2008 VA treatment record reflects that the Veteran reported she "has not been able to work, due to continued exacerbation of her back problems, since 2001." In accordance with Rice, the Board finds that the issue of TDIU has been raised, as part of the increased rating claim on appeal. Therefore, it is properly before the Board. The issue of entitlement to 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. VA will notify the Veteran if further action is required. FINDING OF FACT The medical evidence of record reflects that the Veteran's service-connected lumbar degenerative disc disease L5-S1 with chronic lumbar strain is not productive of ankylosis, incapacitating episodes (e.g., doctor-prescribed bed rest) having a total duration of at least 6 weeks during a 12 month period, radiculopathy of the right lower extremity, or other objective neurological abnormalities. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for lumbar degenerative disc disease L5-S1 with chronic lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5237-5242 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). While the required notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuances of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In the instant case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2006, May 2008, and March 2009. The letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings and effective dates are assigned. Moreover, the May 2008 VCAA notice letter specifically advised the Veteran of the additional notice requirements for increased ratings claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and relevant VA treatment records have been obtained and associated with the claims file. VA has also obtained records from the Social Security Administration. The Veteran has not identified any additional relevant evidence not obtained to date, nor is there any other indication of such evidence. The Veteran was afforded VA spine examinations in November 2006, June 2009, October 2011, and March 2013 to rate the current severity of her service-connected lumbar degenerative disc disease with chronic lumbar strain. As noted in the July 2011 and January 2013 Board remands, the June 2009 and October 2011 VA examinations were not fully adequate. Therefore, in its January 2013 remand, the Board instructed the RO to schedule the Veteran for a new VA spine examination to rate the current severity of her service-connected lumbar degenerative disc disease. The Veteran was scheduled for a VA spine examination in March 2013, but she failed to report without good cause. The duty to assist the Veteran in the development of evidence pertinent to her claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By not appearing for a VA examination, the Veteran deprived VA of an opportunity to supplement the record with potentially favorable evidence, as shown by examination findings. Accordingly, the Board will adjudicate the claim on the basis of the evidence of record. As noted above, the Veteran was afforded a hearing before the undersigned Acting VLJ in November 2008, during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Acting VLJ outlined the increased rating issue on appeal, and the testimony of the Veteran, to include the questions posed by her accredited representative, focused on the elements necessary to substantiate the current appellate claim. The Acting VLJ additionally asked questions of the Veteran to clarify her contentions, particularly regarding the severity of her current disability. Thereafter, the Board remanded the claim for additional development to include a new VA examination. Neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the hearings. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been satisfied. Finally, the Board finds that the RO has substantially complied with the Board's February 2009, July 2011, and January 2013 remand directives. 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). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Here, pursuant to the remands, VA medical records were secured, and additional VA examinations were scheduled to rate the current severity of the Veteran's lumbar degenerative disc disease with chronic lumbar strain. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. II. Merits of the Claim Criteria The Veteran contends that her service-connected lumbar degenerative disc disease with chronic lumbar strain, currently evaluated as 40 percent disabling, has increased in severity. At her November 2008 Travel Board hearing, she specifically stated that she requires four muscle relaxers and four Tylenol per day to help control her severe pain, and that she additionally uses an electrode machine to alleviate the pain. She further stated that her lumbar disability has significantly limited her ability to function. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (2013). When assigning a disability evaluation pursuant to 38 C.F.R. § 4.1, the Veteran's entire history is reviewed; however, where service connection has already been established and an increase in the disability rating is at issue, as in the present case, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must evaluate the medical evidence of record since the filing of the claim for an increased rating, and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In spine cases encompassing degenerative disc disease, there are two sets of applicable criteria. First, under the General Rating Formula for Diseases and Injuries of the Spine (DCs 5237-5242), a 40 percent rating is assigned where there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Second, under 38 C.F.R. § 4.71a, DC 5243 for intervertebral disc syndrome, a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a maximum 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six 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. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. In other words, given the above criteria, the Veteran is entitled to a schedular evaluation in excess of 40 percent only on two bases: (1) unfavorable ankylosis of the entire thoracolumbar spine, or (2) incapacitating episodes having a total duration of at least six weeks during the past 12 months. Other symptoms, such as limitation of motions (including flexion), muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 40 percent evaluation (or by lower levels of evaluation, under DCs 5237-5242) and do not warrant further discussion with regard to the question of whether an increased rating is warranted. Notably, there is no basis for an increased evaluation based upon limitation of motion when a 40 percent evaluation is assigned for a spine disability. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997). Factual Background The Veteran's service treatment records show that she first complained of back pain in December 1990. In January 1991, it was noted that the Veteran fell and hit her back several days earlier, and had been having back pain for four to six weeks prior to the injury. In February 1991, the Veteran was medically discharged from service with a diagnosis of symptomatic mild degenerative joint disease of the lumbar spine. The Veteran's service connected lumbar degenerative disc disease with chronic lumbar strain is currently rated 40 percent disabling. In July 2006, the Veteran submitted a claim for an increased rating for her spine disorder. Evidence relevant to the current level of severity of the Veteran's lumbar spine disorder includes the November 2006, June 2009, and October 2011 VA examination reports, as well as VA treatment records dated April 2004 through June 2009. A May 2006 magnetic resonance imaging (MRI) test revealed multilevel degenerative changes and lumbar spondylosis, findings worse at L5-S1 with evidence of moderate central and paracentral extruded disc herniation. The Veteran was provided with a VA examination in November 2006 in which she was diagnosed with chronic lumbar strain and no evidence of degenerative disc disease based on x-rays of the lumbosacral spine with oblique views. The Veteran complained of severe, constant, sharp and dull pain in her lower back, with intensity of 8 or 9 out of 10. She reported that she could not bend over, squat, or kneel, and that prolonged walking was difficult. On physical examination, the Veteran had guarded motion, and her range of motion revealed extension of 5 degrees and flexion of 20 degrees with complaint of severe pain at the end of motion, right and left lateral flexion of 5 degrees with complaint of severe pain at the end of motion, and rotation of 0 degrees. Functional loss due to subjective complaint of pain was absent. The examiner noted there was no history of acute episodes of excruciating back pain in the past 12 months, or impairment of daily occupational activities due to her service-connected disability. He additionally stated that both lower limbs were negative for any neurological deficiency. A November 2006 impression of multiple views of the lumbar spine revealed normal alignment with mild narrowing of the L5-S1 disc space. The physician noted that there was no abnormal pre or paravertebral soft tissue swelling. At a November 2008 Travel Board hearing, the Veteran testified that she had been through physical therapy three times, and that she was given an electrode machine to use at home to help manage her severe pain. She further stated that she takes Tylenol and a muscle relaxer four times a day and utilizes a cane to help her walk. The Veteran additionally provided that she needs assistance in completing daily activities such as taking a bath. The Veteran was provided with another VA spine examination in June 2009. Upon review of the claims file, interview with the Veteran, and physical examination, the examiner diagnosed the Veteran with degenerative disc disease at L5-S1 and restricted range of motion of the lumbar spine, and specifically noted that there was no evidence of radiculopathy. The Veteran reported acute episodes of incapacitating pain approximately 17 days per month, lasting about 24 hours per episode, with one episode which lasted one week. She additionally reported that she performed basic activities of daily living independently and that her work activities were not affected by her disability. Range of motion testing revealed forward flexion of 40 degrees, neutral extension, left and right lateral bending of 10 degrees, and left and right lateral rotation of 15 degrees. There was no indication of any associated bladder or bowel impairment, and the examiner found no impairment of daily, sedentary occupational activities. The Veteran was given another VA spine examination in October 2011. The Veteran reported that her low back pain flares up with weather changes lasting from a couple days to weeks, requiring her to rest and take medication. On physical examination, range of motion of the thoracolumbar spine showed flexion to 80 degrees, with objective evidence of painful motion at 60 degrees. The Veteran stated that she was unable to perform extension, left and right lateral flexion, and left and right lateral rotation due to pain. She was able to perform repetitive use testing with three repetitions on forward flexion only. The examiner found that the Veteran had the following functional loss and impairment of the thoracolumbar spine after repetitive use: less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weight bearing, and tearfulness secondary to pain. The effect of the disability on the Veteran's occupation was that it limited her ability to stand longer than 10 minutes and restricted her to walking less than a half of a block. The examiner indicated that the Veteran did not have intervertebral disc syndrome or guarding or muscle spasm of the thoracolumbar spine, but did have localized tenderness or pain to palpation of the lower lumbar area. Straight leg raising test results resulted were positive for the left leg and negative for the right leg. The examiner noted that the Veteran had radicular pain and symptoms of radiculopathy. Specifically, the Veteran had moderate intermittent pain and moderate numbness in the left lower extremity, and was without any pain, numbness, or paresthesias or dysesthesias in the right lower extremity. The examiner stated that the Veteran had moderate radiculopathy in the left extremity only. He further noted that the Veteran did not have any other neurologic abnormalities or findings related to her spine condition, to specifically include bowel or bladder problems and pathologic reflexes. Notably, the Veteran was subsequently granted entitlement to service connection for radiculopathy of the left lower extremity in a May 2012 rating decision. The Veteran did not express disagreement with the assigned 20 percent evaluation, and this separate evaluation is accordingly not before the Board on appeal presently. Schedular Consideration The Board finds that a disability rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disorder. Initially, the Veteran's range of motion does not meet the criteria for a 50 percent rating under the rating formula as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Again, ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. As the Veteran has some movement of her lumbar spine, with no notation of ankylosis, the spine is not ankylosed. Thus, the evidence of record is reflective of a disability picture that, in terms of limitation of flexion, is consistent with a 40 percent evaluation. In addition, the medical evidence of record does not show that the Veteran has suffered incapacitating episodes having a total duration of at least six weeks during a 12 month period. The November 2006 examiner specifically found "no history of acute episode of excruciating back pain during the last twelve months." In addition, the June 2009 VA examiner noted that the Veteran reported acute incapacitating pain approximately 17 days per month, lasting about 24 hours per episode, with one episode which lasted one week, and the October 2011 failed to address whether the Veteran had any incapacitating episodes due to her disability. Though the Board is sympathetic to the Veteran's report of incapacitating episodes, there is no evidence that these episodes were of a nature whereby a physician actually prescribed bed rest, as required for rating purposes under 38 C.F.R. § 4.71a. As noted above, though the Board remanded the Veteran's claim in January 2013 for additional development, the Veteran failed to appear for her March 2013 VA examination, the specific purpose of which was to ascertain the total duration of her incapacitating episodes and whether those episodes required bed rest prescribed by a physician. Accordingly, absent such medical evidence, a disability rating greater than 40 percent is not warranted. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, as noted above, the Veteran is current service-connected for radiculopathy of the left lower extremity. With respect to any additional and separately diagnosable disability, however, the November 2006, June 2009, and October 2011 VA examiners specifically found no radicular pain or other signs or symptoms due to radiculopathy in the right lower extremity, as well as no other neurologic abnormalities or findings related to a thoracolumbar spine condition (e.g., bowel or bladder problems/pathologic reflexes). Thus, based on this evidence, the Board must conclude that there are insufficient findings to establish the existence of any separate chronic lower extremity neurological disabilities that could be described as "mild" for purposes of the assignment of one or more separate compensable ratings. In sum, there is no support for assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disorder over any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.21(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 11 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id., at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Extraschedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes, including limitation of motion, are contemplated by the criteria found at 38 C.F.R. § 4.71a. Moreover, more severe manifestations are contemplated by the rating schedule - including unfavorable ankylosis of the entire spine - which the Veteran has not experienced. Those criteria allow for ratings for all of her symptoms and manifestations, and for symptoms and manifestations significantly more severe. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. ORDER Entitlement to a disability evaluation in excess of 40 percent for lumbar degenerative disc disease at L5-S1 with chronic lumbar strain is denied. REMAND A claim for TDIU is part of an increased rating issue when such claim is raised by the record. Rice, 22 Vet. App. at 447. The raised TDIU issue has not been adjudicated. In a November 2006 VA examination report, the examiner noted that the Veteran's lower back pain affects her work and activities of daily living in that "she cannot bend over, squat or kneel" and "[p]rolonged walking is difficult." A September 2008 VA treatment record notes that the Veteran reported that she "has not been able to work, due to continued exacerbation of her back problems, since 2001." In addition, the Veteran testified at her November 2008 Travel Board hearing that she is no longer able to complete many activities of daily living, and that employment is "not an option anymore." The Board finds that the Veteran has reasonably raised a claim for TDIU in conjunction with her increased rating claim. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2013). The Board finds, however, that a remand is required prior to adjudication of the claim for TDIU so as to provide the Veteran with proper VCAA notice and adjudication. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice under the VCAA to substantiate her claim for entitlement to TDIU. 2. Adjudicate the issue of entitlement to TDIU. A Supplemental Statement of the Case is to be issued to the Veteran and her representative if the determination is unfavorable, as the issue is deemed to be presently on appeal in view of Rice. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs