Citation Nr: 1342380	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO. 10-08 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease (DDD).

2. Entitlement to service connection for cervical spine DDD as secondary to service-connected lumbar spine DDD.

3. Entitlement to service connection for cervical spondylosis as secondary to service-connected lumbar spine DDD.

4. Entitlement to service connection for cervical spinal canal stenosis as secondary to service-connected lumbar spine DDD.

5. Entitlement to service connection for cervical spine radiculopathy as secondary to service-connected lumbar spine DDD.




ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1971 to August 1974.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for lumbar spine DDD and assigned a rating of 20 percent, but denied all other claims.

The Veteran stated in his February 2010 substantive appeal that his current back disability prevents him from being able to work. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in this case the Veteran thereafter submitted a formal application for TDIU in March 2010, and that claim was adjudicated in an April 2010 rating decision. The Veteran has not appealed that decision nor submitted further evidence on the issue of TDIU. As the issue of TDIU has already been adjudicated and not appealed, the Board finds that the issue is not raised here.

The Veteran requested a videoconference hearing with a Board member on his February 2010 substantive appeal. However, the Veteran withdrew his hearing request in a September 2013 letter. Therefore, it is not an error that the Veteran was not provided with a hearing.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of service connection for cervical spine DDD, cervical spondylosis, cervical spinal canal stenosis, and cervical radiculopathy, all as secondary to service-connected lumbar spine DDD, 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.


FINDINGS OF FACT

1.  Throughout the appellate period, the Veteran's lumbar spine DDD is manifested by pain, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and a combined range of motion not greater than 120 degrees.

2.  At no point has the Veteran's disability manifested by forward flexion of 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past twelve months.  There is no objective evidence of associated neurological symptoms.


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 20 percent for service-connected lumbar spine DDD have not been met at any time during the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, Part 4, 
§§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. Appropriate efforts have been made to obtain medical records identified by the Veteran, and all records so obtained have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in April 2009 and March 2013. The examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted thorough medical examinations of the Veteran. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an initial rating in excess of 20 percent for service-connected lumbar spine DDD. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran was also provided with a general medical examination in March 2010. The examiner noted that the claims file and the Veteran's medical records were not made available for review in conjunction with the evaluation. However, a failure to review the claims file does not mean that an opinion cannot be probative, as an examiner can still be informed of the relevant facts. See Rodriguez-Nieves, 22 Vet. App. at 303-04. The VA examiner conducting the examination took into account the Veteran's complaints and contentions, noted the Veteran's account of the factual and medical history of his injury, and took objective measurements of the Veteran's thoracolumbar range of motion. The examiner was competent, and there is no evidence of record to indicate that the objective measurements recorded by the examiner were not accurate. Barr, 21 Vet. App. at 312. As such, the Board finds that the March 2010 examination report is probative of the issue on appeal and is also a sufficient basis upon which to base a determination in this case.

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Merits of the Claim

The veteran contends that he is entitled to an initial rating in excess of 20 percent for his service-connected lumbar spine DDD. For the reasons outlined below, the preponderance of the evidence is against finding that an initial rating in excess of 20 percent is warranted on a schedular or extraschedular basis.


A. Increased Schedular Rating

Disability evaluations are 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The Veteran's lumbar spine DDD is rated under Diagnostic Code 5242 for degenerative arthritis of the spine. All disabilities of the spine except for intervertebral disc syndrome are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The General Formula is applied regardless of symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of the injury or disease. See 38 C.F.R. § 4.71a, General Formula. All associated, objective neurologic abnormalities must be rated separately under the appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1.

Normal range of motion for the thoracolumbar spine is forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. See 38 C.F.R. § 4.71a, Plate V; General Formula, Note 2.

Under the General Formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  Id.

For VA compensation purposes, favorable ankylosis is fixation of a spinal segment, whether cervical or thoracolumbar, in neutral position (zero degrees). See 38 C.F.R. § 4.71a, General Formula, Note 2. Unfavorable ankylosis is present when the entire spine or the entirety of a spine segment is fixed in either flexion or extension. Id. Further, the fixed nature of the spine must result in one of more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurological symptoms due to nerve root stretching. Id. 

An alternative rating is available for intervertebral disc syndrome, which can be rated under either the General Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IDS Formula). See 38 C.F.R.
§ 4.71a, Diagnostic Code 5243. For the purposes of the IDS Formula, 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, IDS Formula, Note 1. 

A rating of 40 percent for intervertebral disc syndrome is appropriate when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months. Id. A rating of 60 percent for intervertebral disc syndrome is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. Id.

The Veteran contends that he is entitled to an initial rating in excess of 20 percent for his service-connected lumbar spine DDD. The preponderance of the evidence is against a finding that a higher rating is warranted on a schedular basis. 

Based on objective measurements, the Veteran does not meet the requirements for a rating of 40 percent under the General Formula. In his April 2009 and March 2013 VA examinations, the Veteran was measured as having forward flexion to 90 degrees. In the March 2010 examination, the examiner noted forward flexion to 45 degrees. Further, as the Veteran clearly has at least some thoracolumbar range of motion, it is not possible that the Veteran has favorable ankylosis of the thoracolumbar spine. There is no other medical evidence of record indicating that the Veteran has forward flexion limited to 30 degrees or less or favorable ankylosis of the thoracolumbar spine, and the Veteran has submitted no lay statements to that effect. As such, the preponderance of the evidence is against finding that the Veteran meets the requirements for a 40 percent rating under the General Formula. See 38 C.F.R. § 4.71a, General Formula.

Similarly, the preponderance of the evidence is against a finding of unfavorable ankylosis of either the thoracolumbar spine or the entire spine, as all three VA examiners found that the Veteran has thoracolumbar range of motion to at least some degree in all directions. No other medical evidence has been submitted indicating that the Veteran has unfavorable ankylosis of either the thoracolumbar spine or the entire spine, and at no point has the Veteran submitted lay statements indicating that he has unfavorable ankylosis of either. As a result, the preponderance of the evidence is against a finding that a rating of either 50 percent for unfavorable ankylosis of the thoracolumbar spine or 100 percent for unfavorable ankylosis of the entire spine is warranted.

In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has complained primarily of back pain, which limits his ability to move and perform actions such as lifting and bending, all of which the Veteran is competent to report. Jandreau, 492 F.3d 1372. However, all three VA examiners found that upon repetitive testing there was no additional functional loss due to pain, weakness, fatigue, or incoordination. The March 2010 examiner did note objective evidence of pain on motion, but also specifically noted that this pain did not limit the Veteran's range of motion. All three examiners took into account the Veteran's accounts of his symptoms. No other medical evidence indicating further limitation of motion based on factors such as pain, weakness, or incoordination are of record. The Board finds that the VA medical opinions outweigh the Veteran's statements regarding additional functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Veteran's complaints of pain on motion are fully contemplated by his current rating. 38 C.F.R. § 4.59.

An alternative rating under the IDS Formula is not warranted. All three VA examiners noted that the Veteran did not have any incapacitating episodes in the 12 months prior to the examinations. The Veteran has also not submitted any lay statements indicating that he has at any time experienced incapacitating episodes as a result of his lumbar spine DDD, or medical evidence indicating missed work due to physician prescribed bed rest or treatment. As preponderance of the evidence indicates the Veteran has not had any incapacitating episodes totaling between 4 and 6 weeks or over 6 weeks in duration in the last twelve months, a rating of either 40 percent or 60 percent, respectively, under the IDS Formula is not warranted.

Finally, the Board notes that any associated, objective neurologic abnormalities must be rated separately under the appropriate Diagnostic Code. See 38 C.F.R. § 4.71a, General Formula, Note 1. All three VA examiners noted that there was no radiculopathy present during the examination, and the March 2013 VA examiner further indicated that there were also no other neurological abnormalities present. All three also found that the Veteran had normal reflexes, sensory abilities were intact, and muscle strength was normal. The Veteran's VA treatment records are likewise silent for complaints indicating the presence of neurologic abnormalities, such as radiating pain or numbness. The only medical indication of any neurological issues is a positive Lasegue's Sign during the March 2010 VA examination, but that examiner still found that there was no radiculopathy present. The Veteran did report some bilateral legs numbness during his March 2013 VA, but has not submitted any other lay statements complaining of loss of feeling or radiating pain in his lower extremities. Based on the evidence, the Board finds that the single positive Lasegue's Sign and the Veteran's statement regarding some lower extremity numbness bilaterally is outweighed by the other medical evidence of record, almost all of which indicates that there are no objective signs of neurologic abnormalities. As such, no separate ratings for such abnormalities are warranted in this case.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of 20 percent for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, staged ratings are not warranted, as the Veteran has had a stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. The preponderance of the evidence is against a rating in excess of 20 percent based on limitation of flexion for the Veteran's left knee disability. As such, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

B. Extraschedular Rating

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between 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. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

Neither the first nor second Thun element is satisfied here. The Veteran's service-connected lumbar spine DDD is manifested by pain, with limited range of motion. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the General Formula. See 38 C.F.R. 
§ 4.71a, Diagnostic Code 5242. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is pain, forward flexion greater than 30 degrees but less than 60 degrees, and a combined range of motion less than 120 degrees. In short, there is nothing exceptional or unusual about the Veteran's lumbar spine DDD because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his lumbar spine DDD has caused marked absence from work or has resulted in any hospitalizations. Therefore, the Veteran's service-connected lumbar spine DDD does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.


ORDER

Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine DDD is denied.


REMAND

The Board must remand the remaining claims for secondary service connection so that a statement of the case can be issued.

When a notice of disagreement (NOD) has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). An NOD is timely when it is filed within one year of the adverse decision. 38 C.F.R. § 20.302.

In a June 2009 rating decision the RO denied service connection for cervical spine DDD, cervical spondylosis, cervical spinal canal stenosis, and cervical radiculopathy, which the Veteran alleges are all secondary to his service-connected lumbar spine DDD. In his timely July 2009 NOD, the Veteran stated that he was requesting that "a decision review officer re-adjudicate all issues in my claim, to include the 20% rating granted for lumbar spine DDD." The Board reads that statement to mean that the Veteran filed an NOD with respect to all of the issues adjudicated in the June 2009 rating decision. However, the subsequent statement of the case listed only the Veteran's appeal from the initial 20 percent rating assigned to his lumbar spine DDD, and there is no indication that any further action has been taken with respect any of these other claims for secondary service connection. 

Thus, a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; see Manlincon, 12 Vet. App. 238.

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case regarding the issues of service connection for cervical spine DDD, cervical spondylosis, cervical spinal canal stenosis, and cervical radiculopathy, all of which are claimed to be secondary to service-connected lumbar spine DDD.

Advise the Veteran of the procedural requirements to continue an appeal of those issues. If, and only if, the Veteran files a timely substantive appeal, the issues should be certified to the Board.

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).

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).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs