Citation Nr: 1343148	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  05-10 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a chronic disability manifested by joint pain, to include as due to an undiagnosed illness or secondary to service-connected disability.

2.  Entitlement to service connection for a chronic disability manifested by sleep disturbance, to include as due to an undiagnosed illness.

3.  Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to March 16, 2012, and in excess of 20 percent from March 16, 2012.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from September 1971 to September 1973 and from December 1990 to August 1991.  The Veteran also had intervening and subsequent service in the Alabama Army National Guard.  

This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions by the Montgomery, Alabama, Regional Office (RO).  By a rating action in September 2004, the RO denied the Veteran's claims for a rating in excess of 10 percent for degenerative joint disease of the lumbar spine and entitlement to TDIU.  He perfected a timely appeal to that decision.  Subsequently, in August 2006, the RO denied the Veteran's claims of entitlement to service connection for joint pain as due to undiagnosed illness and sleep disturbance as due to an undiagnosed illness.  He also perfected a timely appeal to that decision.  In September 2007, the Veteran testified at a hearing before a Decision Review Office (DRO) at the RO.  A transcript of the hearing is associated with the claims folder.  

In April 2008, the Board remanded the case to the RO in order to provide the Veteran with a hearing he had requested before a Veterans' Law Judge sitting at the RO.  



On April 8, 2010, the Veteran appeared and testified at a hearing before the undersigned sitting at the RO.  A transcript of the hearing is of record.  Subsequently, the Veteran submitted additional evidence directly to the Board for which he has provided written waiver of RO review under 38 C.F.R. § 20.1304 (2013).  

In July 2010, the Board remanded the case for further evidentiary development.  By a rating action in October 2012, the Appeals Management Center (AMC) increased the rating for degenerative disc disease from 10 percent to 20 percent, effective March 16, 2012.  Because this is not the highest possible rating available under the rating schedule, and the Veteran has not indicated that he is content with the rating, the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993).  A supplemental statement of the case (SSOC) was issued in November 2012.  The Board finds there has been substantial compliance with the remand.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

A December 2013 review of the Virtual VA (VVA) paperless claims processing system reflects that VA/CAPRI records current through January 2011 are in the VVA file.  The November 2012 SSOC reflects consideration of these records.  

The claim for a 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.



FINDINGS OF FACT

1.  The Veteran had active military service in the Southwest Asia Theater of operations during the Persian Gulf War.  

2.  The Veteran does not exhibit a disability (generalized joint pains) that had its clinical onset or is otherwise related to active duty, or does he exhibit a qualifying chronic disability (generalized joint pain) from an undiagnosed illness or a chronic multisymptom illness manifested to a compensable degree.  He does not have a disability manifested by joint pain secondary to a service-connected disability.  

3.  A chronic disability manifested by sleep disturbance was not shown to have become manifest in service or to be related to service, to include service in the Persian Gulf.  

4.  Prior to April 14, 2010, the most probative evidence of record shows that the Veteran's degenerative disc disease of the lumbar spine was manifested by adverse symptomatology that equated to limitation of forward flexion of the thoracolumbar spine to less than 60 degrees when taking into account his pain and tenderness, but not to 30 degrees or less, and his disability was not productive of ankylosis or incapacitating episodes having a total duration of at least four weeks during any 12-month period. 

5.  From April 14, 2010, the most probative evidence of record shows that the Veteran's service-connected degenerative disc disease of the lumbar spine has been manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees when pain on motion is taken into consideration but has not been productive of ankylosis or incapacitating episodes having a total duration of at least six weeks during any 12-month period since this time.  



CONCLUSIONS OF LAW

1.  A chronic disability manifested by joint pain, to include as due to an undiagnosed illness, was not incurred in or aggravated by the Veteran's military service or a service-connected disability.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.159, 3.303, 3.310(a), 3.317 (2013).  

2.  A disability manifested by sleep disturbance was not incurred in or aggravated by active service, to include as due to an undiagnosed illness.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2013).  

3.  Prior to April 14, 2010, the criteria for a 20 percent rating, but not more, for degenerative disc disease of the lumbar spine were met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013).  

4.  From April 14, 2010, the criteria for a 40 percent rating for degenerative disc disease of the lumbar spine, but no more, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist.

The Veterans Claims Assistance Act of 2000 (VCAA) has enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of letters dated in May 2004, July 2004, and May 2006 from the RO to the Veteran, which were issued prior to the RO decisions in September 2004 and August 2006.  Additional letters were issued in May 2008, August 2008, September 2008, February 2009, July 2010, September 2010, and February 2012.  Those letters informed the Veteran of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence.  Accordingly, the requirements the Court set out in Pelegrini have been satisfied.  

The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. 

VA has obtained service and post-service medical records.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  The Board is unaware of any outstanding evidence or information that has not already been requested.  The Veteran has been afforded VA examinations on the issues decided herein.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The examinations afforded the Veteran are adequate.  Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008).  They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran.  Therefore, the Board also finds that the post-remand VA examinations substantially comply with the Board's remand directions.  See 38 U.S.C.A. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

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 Veterans Law Judge (VLJ) who conducts 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, during the April 2010 Board hearing, the Veteran was assisted at the hearing by an accredited representative and the representative and the Acting VLJ asked questions to ascertain the extent of any in-service events or injuries and whether the Veteran's current disabilities are related to his service.  They also asked questions to draw out the current state of the Veteran's service connected disability.  No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Therefore, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  Therefore, no useful purpose would be served in remanding the questions addressed herein for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

II.  Factual background.

The record indicates that the Veteran served on active duty from September 1971 to September 1973 and from December 1990 to August 1991.  The Veteran's DD Form 214 reflects that he was ordered to active duty in support of Operation Desert Shield/Storm from February 10, 1991 to June 17, 1991; he was awarded the Southwest Asia Service Medal w/1 Bronze Star.  The Veteran also had intervening and subsequent service in the Alabama Army National Guard.  The service treatment reports (STRs) show that the Veteran reported a history of recurrent back pain at his enlistment examination in September 1971.  Throughout his period of service, he continued to receive clinical attention for complaints of back pain.  During a National Guard examination in March 1984, the Veteran reported that he injured his back lifting trash cans during inactive duty for training.  During his demobilization examination in June 1991, the Veteran complained of back pain which became worse persistent on duty in Southwest Asia.  He reported a history of back pain related to civilian job as a mechanic; however, he stated that his condition worsened while on active duty.  The STRs are completely negative for any complaints of or treatment for joint pain, other than the back or a sleep disorder.  

Post service treatment reports dated from May 1993 to January 1994 reflect ongoing treatment for back pain.  

By a rating action in April 1994, the RO granted service connection for history of lumbar strain and assigned a 0 percent disability.  

Medical evidence of record, including VA as well as private treatment reports, dated from December 1993 to October 1995, shows that the Veteran received clinical attention for chronic back pain, shoulder joint pain and bilateral foot pain.  

By a rating action in March 1997, the RO increased the evaluation for the Veteran's lumbar strain from 0 percent to 10 percent, effective September 20, 1995.  Subsequently, in a May 2000 rating action, the RO recharacterized the Veteran's back disorder as degenerative joint disease of the lumbar spine and confirmed the 10 percent disability rating assigned.  

Medical evidence of record, including VA as well as private treatment reports, dated from September 1999 to March 2003, reflects ongoing treatment for complaints of chronic back pain, shoulder pain and hip pain.   A July 2000 treatment note reflects an assessment of carpal tunnel syndrome, left and cervical spine syndrome.  A treatment report dated in July 2000 indicates that the Veteran had pain in the left wrist and his left hand.  An MRI revealed evidence of a moderately severe left carpal tunnel syndrome.  During a clinical visit in December 2001, the Veteran complained of back pain and right hip pain; the assessment was hip pain and back pain.  When seen in January 2002, it was noted that the Veteran had been complaining of tension in his neck, back of ear and shoulder.  On the occasion of a VA examination in October 2002, it was noted that the Veteran suffers from a lot of musculoskeletal pain; he stated that his pain was worsened when he fell off a truck in January 2000.  

Of record is a statement from Dr. Thomas N. Bernard, indicating that he first saw the Veteran in February 2002 with complaints of back pain and bilateral hip pain; he was found to have some degenerative disc disease at L5-S1.  They discussed further diagnostic tests, but the Veteran did not want to proceed with further workup.  He was placed on light duty work status, but this was not available to him.  He called the office and requested a full duty release which was issued to him on April 17, 2002.  It was noted that the Veteran had not returned to work as of the date of the note.  He stated that he was having increased problems with his lower back, aching type pain.  On his last evaluation, it was felt that his condition was stable; his neurological evaluation was normal.  With regards to work, Dr. Bernard stated that he felt that the Veteran could function in a light type job profile range with no repetitive bending, stooping, squatting, and approximately a 25 pound weight limit.  

On the occasion of a VA examination in October 2002, the Veteran indicated that he has constant back pain on a daily basis; he described the severity of his pain as an 8 to 9 on a scale from 1 to 10.  He is unable to stoop over, do any prolonged standing, or tolerate any vibration.  The Veteran related that he often has to get into a fetal position which eases the pain somewhat.  The Veteran also reported that he has had some injections into his back, which has helped some but the pain is persistent.  He does not wear any splints or braces.  The Veteran also reported that he suffers from bilateral carpal tunnel syndrome; while surgery has been recommended, he does not want to undergo any surgery.  The Veteran further noted that he is in pain with regard to a lot of his musculoskeletal problems, and his pain worsened after a fall off of a truck in January 2000.  On examination, it was noted that the Veteran was not using any ambulatory aids; his gait appeared normal.  He had good pulses bilaterally in the upper and lower extremities.  Neurologic examination showed good sensation, motor strength and deep tendon reflexes that were symmetrical in the upper and lower extremities bilaterally.  Examination showed tenderness at the left side of the neck and he was tender at the lumbar area.  There was no erythema.  Range of motion in the lumbar spine was normal in flexion, extension, lateral flexion, and rotation.  He had tenderness on doing straight leg raising bilaterally and stated that his back hurt on this maneuver.  X-ray study of the lumbar spine was normal for joint and bone abnormalities.  The pertinent diagnoses were lumbar strain with no loss of range of motion, carpal tunnel syndrome bilaterally by history and mild sacroilitis.  

Received in November 2002 were treatment records from Hughston Clinic dated from April 2001 to October 2002 reflecting ongoing treatment for the back disorder.  During a clinical visit in October 2002, it was reported that he had flexion to 80 degrees, extension to 30 degrees and right and left bending to 45 degrees.  His motor, sensory, reflex and vascular examinations were normal.  MRI of December 2001 revealed diminished T2 signal at L5-S1.  There was no obvious herniation seen.  He had some minimal degenerative changes in the lower lumbar spine on plain x-rays that were reviewed from the past.  

Of record is a medical statement from Dr. Glen A. Gabrielson, dated in March 2003, indicating that the Veteran has been his patient since 1998.  He noted that the Veteran has degenerative lumbar spondylosis with degenerative changes at L5-S1; his restrictions are permanent in nature.  Dr. Gabrielson stated that it was his professional opinion that the Veteran was medically disabled and will not be able to continue gainful employment.  

The Veteran's claim for an increased rating was received in January 2004.  Submitted in support of the claim is a copy of a Social Security Administration decision, dated in July 2003, which found the Veteran to be disabled within the meaning of the social security act.  It was determined that the Veteran has severe impairments, including lumbar spondylosis with degenerative changes at L5-S1 and mild to moderate left foraminal stenosis at L4-5, carpal tunnel syndrome and depressive disorder.  It was also determined that he is unable to perform basic work activities on a regular and continuing basis on a sedentary exertional level in a competitive environment.  

The Veteran was afforded a VA examination in August 2004.  He reported that the back problem has been getting worse; he was seen in the pain clinic in June 2004, at which time x-ray revealed degenerative arthritic changes.  He denied any radiation of the lower back pain to the legs.  There was no history of any radiculopathy symptoms.  The Veteran indicated that he has received injections to the back in the past with temporary relief.  The Veteran noted that aggravating factors for the back including wrong movements, prolonged sitting and prolonged standing; he stated that he cannot lay on his stomach.  The Veteran related that alleviating factors were medications, relaxation and getting into a fetal position.  He did not use any back brace since it bothers him.  The Veteran indicated that he was not using any cane or crutches; he denied any stiffness of the lower back pain.  He has not been working.  He stated that he worked as a mechanic in the past and he last worked in February 2000; he stated that they "put me out of work because of the back problems."  The Veteran indicated that he cannot drive long distance and he cannot work for extended periods of time.  The Veteran indicated that as long as he keeps moving, the pain is better, but he cannot sit or stand for prolonged periods of time and he cannot do strenuous work.  The Veteran also reported neck problems; he stated that he had a past history of pinched nerves off and on for the past 10 years and he had history of carpal tunnel syndrome of the wrists.  

On examination, it was noted that the Veteran's posture and gait was normal.  He was not using any ambulatory aids.  Examination of the lumbar spine revealed tenderness over the lumbosacral spine.  A full range of motion of the thoracic spine was elicited but associated with mild pain.  Forward flexion was to 95 degrees, backward extension was to 35 degrees, lateral flexion was to 40 degrees on both sides, and lateral rotation was 35 degrees bilaterally.  No paravertebral muscle spasms were noted.  Straight leg raising test bilaterally was to 90 degrees was negative.  Deep tendon reflexes were 2+ bilaterally symmetrically in both upper and lower extremities, and plantars were flexor.  A neurological examination was essentially normal without any evidence of focal nuerological deficit.  X-ray study of the lumbar spine revealed no bone or joint abnormality of the lumbar spine; there were marginal spurs at L3-L4, and there were minimal degenerative facet joints at L4-L5 and L5-S1.  The pertinent diagnoses were degenerative spondylosis of the lumbar spine, functional limitation due to pain, mild to moderate 25% to 50%; it was further noted that joint function was additionally limited by pain, fatigue and weakness secondary to repetitive use and flare-ups and it affects his physical and employability moderately.  The examiner also reported a diagnosis of spondylosis of the cervical spine intermittent of cervical radiculopathy symptoms.  

Of record is the radiologic report, dated in November 2004, which revealed findings of mild disc desiccation at L5-S1 with no disc herniations or spinal stenosis.  

The Veteran's application for undiagnosed illness manifested by joint pain and sleep disturbance was received in December 2005.  Submitted in support of the claim were VA progress notes dated from February 2005 to February 2006 reflecting ongoing treatment for chronic pain in the lower back and neck pain.  

The Veteran was afforded a VA Gulf War examination in July 2006.  The Veteran stated that, after going to the Gulf, he began experiencing joint pain in his elbows, wrists, hips, neck and lower back.  He stated that he experiences joint pains on a daily basis, but they become worse at night.  The Veteran related that he also experiences charley horses in his arms and legs.  He stated that the takes pain medications and muscle relaxers which are effective in relieving the pain and charley horses in his legs.  The Veteran indicated that no activity made the joint pain worse; he noted that the multiple joint pains are the same all the time.  The Veteran related that exercising and water makes his pain and muscle spasms a little more tolerable.  The Veteran also reported that he has constant pain that requires him to move slowly and carefully.  He stated that he has had joint pain, foot problems and problems with poor sleep ever since he served in the Persian Gulf.  He also reported a history of suffering from sleep disturbance related to his constant back pain.  The Veteran indicated that the pain in his back wakes him up at night unless he takes increased amount of medication; he stated that he only gets about 3 to 4 hours of sleep at night.  

On examination, it was noted that there were no postural abnormalities.  He had symmetry, appearance and rhythm with spinal motion.  Range of motion in the lumbar spine revealed forward flexion from 0 degrees to 60 degrees, with moderate limitation due to pain.  Extension was from 0 degrees to 20 degrees with moderate limitation of motion due to pain.  Lateral inspection of the lumbar spine was to 20 degrees, bilaterally, with moderate limitation due to pain.  Lateral rotation to the right and left of his lumbar spine was to 20 degrees with moderate limitation due to pain.  It was noted that the Veteran had increased muscle tightness and palpable spasms of his lumbar spine during repetitive range of motion.  He also had increased weakness of his lumbar spine during repetitive range of motion.  He had no additional loss in decrease of range of motion as a result of repetitive movements.  X-ray study of the lumbar spine revealed normal lordosis.  There was also minimal spondylosis of the lumbar spine, with small marginal spurs from L3 to S1 with minimal corresponding neural foraminal encroachment.  The pertinent diagnoses were chronic muscle joint strain secondary to Gulf war syndrome; sleep disorder, secondary to chronic strain; and spondylosis of the lumbar spine.  

Subsequently received were VA as well as private treatment reports dated from January 2000 through March 2007 which reflect ongoing treatment for complaints of chronic low back and neck pain with radiation of pain into both arms.  A February 2006 VA progress note reflects an assessment of cervical arthritis.  A July 2006 VA progress note indicates that the Veteran had had chronic complaints of neck pain for years; the impression was myofascial pain syndrome and neck pain.  

At his personal hearing in September 2007, the Veteran maintained that he developed undiagnosed illnesses, including joint pain and a sleep disorder, which stem from his service in the Gulf War during the period from February 1991 to June 1991.  The Veteran indicated that a doctor has stated that there is a 50 to 75 percent increase of back pain during flare-ups.  The Veteran explained that he was in the reserves from 1973 to 1996, and he had a period of active duty in the Gulf War from December 1990 to August 1991 when he as activated during the first Gulf War.  The Veteran related that he was a heavy weld vehicle mechanic and he was assigned to the 214 Transport Mayday squadron in Kuwait.  He stated that he had muscle pain and joint pain before he left service.  The Veteran indicated that he hurt himself at Sheffield Fort Rucker in early 1980's; he picked up some snow chains when he heard a crunch in his lower back.  The Veteran also reported that he only sleeps about 3 to 4 hours a night resulting from his joint pain; he stated that he can only relax in a fetal position.  He described his low back pain as a constant pain like a burning sensation; he also described the intensity as an 8 out of 10.  The Veteran indicated that he has trouble sitting for long periods of time; he uses a back brace but does not use a cane.  The Veteran also reported that he was released from his last employment in part due to his back condition.  

The Veteran was afforded a VA examination for evaluation of the lumbar spine in October 2007.  It was noted that he has been seen by the physical medicine rehab specialist in the past several times and has received physical therapy with little relieve and also has used a TENS unit.  More recently, he has seen the physical medicine and rehab specialist in September 2007 for a home lumbar traction unit.  The Veteran described a constant pain in the lower back at the level of 10 and with medication reports that it comes down to an 8.  Aggravating factors are prolonged standing, sitting, or any wrong movement.  He reports that he cannot lie on his stomach.  Alleviating factors are medications, relaxation and getting into a fetal position.  The Veteran indicated that he has a back brace which he does not like to use because it takes away his mobility; he uses it as needed.  He does not use any cane or crutches.  He also described constant stiffness of the lower back and some radiation of pain into both hips and sometimes to the knees.  In addition to the lower back problems, the Veteran also reported neck problems and carpal tunnel syndrome.  He noted that the pain is affecting his daily functioning and quality of life with sleep, mood, general activity, normal work and ability to concentrate.  

On examination, it was noted that the Veteran was noted to be in no acute distress but he was wearing a back brace and was noted to have a slightly stiff and abnormal posture.  He did not use any assistive device.  Examination of the lumbar spine revealed a moderate amount of tenderness all over the lumbosacral spine.  He was noted to have some tenderness over the paravertebral muscles and also some paravertebral muscle spasm was noted.  Range of motion was limited and guarded.  Forward flexion was to 60 to 65 with moderate pain and further range of motion was limited.  Backward extension was 25 degrees, lateral flexion was to about 25 degrees bilaterally, and lateral rotation was to about 25 degrees on both sides.  He reported that lateral rotation mostly caused more pain and spasms and he avoided doing this.  Straight leg raising test to 90 degrees was negative.  Motor testing in the upper and the lower extremities was normal.  Sacroiliac joints are within normal limits bilaterally.  The impression was minimal to mild lumbar spondylosis from L3 to S1.  

VA treatment reports dated from June 2008 through September 2008 reflect treatment primarily for foot disorders.  

At his personal hearing in April 2010, the Veteran indicated that his back pain continues to worsen; he stated that he used to go to the pain management clinic in Dothan, but he does not go any more.  The Veteran stated that he is currently taking medications for his chronic back pain.  The Veteran related that he experiences muscle spasms and stiffness in his back; also reported having radiating pain into his legs.  The Veteran stated that it feels like he has needles poking his legs.  He reported difficulty bending and performing other activities because of his back pain.  The Veteran also reported that he was currently receiving social security disability benefits as a result of his back disorder.  The Veteran testified that he experiences joint pain in his shoulders, wrists, knees, hips, feet and ankles; he noted that he experiences joint pain on a daily basis.  The Veteran reported that he first noticed the joint pain in 2000 after falling off a truck; he was taken to the emergency room and was given a shot of cortisone.  The Veteran related that he began having sleeping problems after he returned home from Desert Storm in 1991; however, he has never been treated for a sleep disorder.  The Veteran maintained that he is unable to work as a result of his low back disorder; he stated that he has been determined to be disabled by the Social Security Administration.  The Veteran indicated that the only thing that he knows is technician/mechanic work; he noted that he has a 10th grade education and earned a GED.  The Veteran also reported that he used to drive trucks; he also has experience in welding, plumbing, and body repair while working as a mechanic.  The Veteran maintained that his only training has been for jobs that require quite a bit of physical work; he stated that he has never received training that would allow him to work at a desk.

Submitted at the hearing was a medical statement from Dr. Glen A. Gabrielson, dated in April 2010, indicating that the Veteran was seen for an evaluation of his back.  He noted that the Veteran had back pain.  Range of motion in the back was reported forward flexion was to 30 degrees, extension 0 degrees, lateral flexion 10 degrees bilaterally.  He was unable to squat and rise to a standing position, unable to stand on his toes because of previous toe surgery, but he was able to stand on his heels.  Motor strength was generally reduced due to deconditioning and pain.  Straight leg raising test was negative bilaterally.  There was no visible atrophy, and reflexes were 2+/2+ in the knee jerks and ankle jerks.  Dr. Gabrielson stated that it was his impression that the Veteran is unemployable due to his complaints of back pain.  Therefore, it prevents him from obtaining or maintaining gainful employment.  

The Veteran was afforded a VA examination in March 2012, at which time he stated that he complained of all his joints hurting; he stated that he requires continuous use of medications for his arthritis condition.  The Veteran reported problems with pain attributable to his arthritis condition.  It was noted that joints affected were his shoulders, hips, elbows, knees, wrists, ankles, hands and feet.  He has limitation of joint movement attributable to the arthritis condition.  Following a physical examination, the examiner stated that there is no documentation supporting the onset of generalized joint pains either during the gulf war or in the year following his return from Southwest Asia.  The examiner noted that all of the Veteran's physical examinations centered on his back pain and foot problems.  He found no STRs or evidence supporting generalized joint pains arthralgias.  Therefore, the examiner opined that it is less likely than not that his multiple generalized joint pains were incurred in or related to military service.  

The Veteran also reported decreased sleep and significant daytime sedation interfering with daily activities.  The examiner stated that there is no documentation supporting the onset of sleep problems either during the gulf war or in the year following his return from Southwest Asia.  The examiner further noted that there are no complaints of sleep problems in the STRs.  Therefore, the examiner opined that it is less likely than not that the Veteran's sleep problems were incurred in or related to military service.  

The Veteran was also afforded a VA examination for his back disorder.  The Veteran indicated that his back pain was worsening and it's getting harder to move.  The Veteran denied any numbness, tingling, weakness or abnormal sensation in his legs.  The Veteran also reported flare-ups of back pain manifested by increased pain and stiffness.  On examination, forward flexion in the lumbar spine was to 60 degrees, with painful motion starting at 30 degrees.  Extension was to 10 degrees, with pain starting at 5 degrees.  Right lateral flexion was to 20 degrees, and left lateral flexion was to 25 degrees; there was no objective evidence of painful motion with these movements.  Right lateral rotation was to 10 degrees, with painful motion starting at 5 degrees; and left lateral rotation was to 20 degrees.  After repetitive motion, forward flexion was to 40 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and lateral rotation was to 15 degrees, bilaterally.  The examiner noted that the Veteran had additional limitation of motion in the range of motion of the thoracolumbar spine following repetitive use testing.  He had less movement than normal, pain on movements, and interference with sitting, standing and/or weigtbearing.  The Veteran also had localized tenderness and pain to palpation, muscle spasm and abnormal spinal contour.  Strength testing was 5/5.  No muscle atrophy was noted.  Deep tendon reflexes were 2+.  Sensory examination in the upper and lower extremities was normal.  Straight leg raising was positive.  The examiner noted that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy.  No other neurologic abnormalities were noted related to a thoracolumbar spine condition.  The Veteran does not have IVDS.  The examiner noted that the Veteran uses a cane, and noted that his back condition impacts his ability to work.  However, the examiner stated that he did not feel that the Veteran's back condition alone precludes employment.  He stated that, based on the Veteran's back condition alone, it is reasonable to conclude that he should be able to perform office work/sedentary employment as long as he avoids activities that aggravate his back, including lifting, bending, or stooping.  

The Veteran's VVA file contains VA medical records current January 2011.  These records show that the Veteran continued to receive clinical attention for his chronic back pain.  

III.  Legal Analysis-Service connection.

Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110.  To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so- called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (2009).  

Service connection will be presumed for certain chronic diseases, such as arthritis, if they were manifest to a compensable degree within the year after active service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2013).  

Service connection may also be granted where disability is proximately due to or the result of already service-connected disability.  38 C.F.R. § 3.310.  Compensation is payable when service-connected disability has aggravated a non-service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

There was an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation.  For this reason, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant.

Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  

On December 27, 2001, the President signed HR 1291, the "Veterans Education and Benefits Expansion Act of 2001" (VEBEA), Pub. Law 107-103, 115 Stat. 976 (December 27, 2001). Section 202(a) of the Act amended 38 U.S.C.A. § 1117  to expand the definition of "qualifying chronic disability" (for service connection ) to include not only a disability resulting from an undiagnosed illness as stated in prior law, but also any diagnosed illness that the Secretary determines in regulations warrants a presumption of service connection under 38 U.S.C.A. § 1117(d).  Section 202(a) also expanded compensation availability for Persian Gulf veterans to include "medically unexplained chronic multi-symptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome that is defined by a cluster of signs or symptoms.  

38 C.F.R. § 3.317 was amended in 2003 to incorporate these changes, and that amendment was made retroactively effective March 1, 2002.  See 68 Fed. Reg. 34539 -543 (June 10, 2003).  New 38 C.F.R. § 3.317(a)(2)(ii) was added defining the term "medically unexplained chronic multi-symptom illness" to mean "a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  It was further stated that "Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained."  As yet, VA has not identified any illness other than the three identified in section 202(a) as a "medically unexplained chronic multi-symptom illness;" therefore, new 38 C.F.R. § 3.317(a)(2) (I)(B)(1) through (3) only lists chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome as currently meeting this definition.  See 68 Fed. Reg. 34539 -543 (June 10, 2003). It was provided, however, in new 38 C.F.R. § 3.317(a) (2) (I)(B)(4) that the list may be expanded in the future when the Secretary determines that other illnesses meet the criteria for a "medically unexplained chronic multi-symptom illness."  

A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a) (1) (I).  Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical location, or symptomatology are similar.  A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States.  38 C.F.R. § 3.317(a) (2-5).  

Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 C.F.R. § 3.317(b), as amended by 68 Fed. Reg. 34539 -543 (June 10, 2003).  The Secretary of Veterans Affairs, under the relevant statutory authorities, has determined that there is no basis for establishing a presumption of service connection for any illness suffered by Gulf War veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines.  See 66 Fed. Reg. 35,702 -10 (July 6, 2001), and 66 Fed. Reg. 58,784-85 (Nov. 23, 2001).  

In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir.1994).  The Board has therefore given consideration to whether service connection may be granted for the Veteran's claimed disorders regardless of his Persian Gulf service.  

As a threshold matter, the Board notes that military records reflect that the Veteran served in the Southwest Asia Theater of operations from February 1991 to June 1991.  Therefore, he had active military service in the Southwest Asia Theater of operations during the Persian Gulf War.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that § 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). (The Board recognizes that the Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).)  

The Veteran can attest to factual matters of which he has first- hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In such cases, the Board may weigh that testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

A.  Joint pain.

As noted above, to warrant entitlement to service connection for joint pain per § 3.317, the evidence would need to show a condition characterized by chronic or recurrent symptoms.  In this case, there are subjective complaints from the Veteran that he has suffered from generalized joint pains but, otherwise, the medical record is silent for any findings or diagnoses related to chronic or recurrent symptoms of a disability including a disability manifested by joint pain, other than degenerative disc disease of the lumbar spine, for which service connection has already been granted.  

Although the July 2006 VA examiner diagnosed chronic multiple joint strain secondary to Gulf War syndrome, those opinions were provided without the examiner having reviewed the claims folder; the opinion was based solely on contentions reported by the Veteran.  On the contrary, following the VA examination in March 2012, the examiner noted that there is no documentation supporting the onset of generalized joint pains either during the Gulf war or in the year following the Veteran's return from Southwest Asia.  The examiner noted that all of the Veteran's physical examinations center around his back pain and foot problems, diagnosed as calcaneal spurs.  The examiner stated that he found no STRs or evidence supporting generalized joint pains arthralgias.  Therefore, the examiner opined that it is less likely than not that the Veteran's multiple generalized joint pains were incurred in or related to military service.  

Here, the basis for the VA examiner's comment is clearly apparent to the Board.  There is simply no objective evidence of pertinent disability in service or within the first post-service year.  The Veteran has not claimed that pertinent disability had its onset in service, nor has he suggested a continuity of symptomatology since his discharge.  In view of the absence of findings of pertinent pathology in service, and the first suggestion of pertinent disability many years after active duty, and the complete absence of any current objective findings during the March 2012 VA examination, relating the claimed disability to any in-service exposure would certainly be speculative.  See 38 C.F.R. § 3.102.  

In essence, the Veteran does not exhibit chronic joint pain that had its clinical onset in service or that is otherwise related to active service.  In this regard, service connection may be granted for a disability which is proximately due to and the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  This would include the extent of any aggravation of any otherwise non-service-connected disability.  38 C.F.R. § 3.310(b).  See Allen, supra.  Secondary service connection requires evidence of a connection to a service-connected disability.  See Reiber v. Brown, 7 Vet. App. 513 (1995).  An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation.  See 38 C.F.R. § 3.159 (2013); see also Grivois v. Brown, 6 Vet. App. 136 (1994).  A competent medical opinion is needed to link one medical diagnosis to another.  In this case, there is no competent medical opinion linking the Veteran's joint symptoms to any service connected disability.  Thus, the preponderance of evidence on this aspect is against the claim.  

Lastly, while the Veteran is competent to report that he has symptoms such as joint pain, his own assertions of a causal nexus between his events, injuries, and diseases in service and the remote diagnosis of specific disabilities including arthritis are not competent evidence in this matter, as those questions are clearly ones beyond lay observation.  A nexus between a current disability and remote service events is a medical question that requires medical expertise.  The Veteran has not demonstrated that he has any medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In light of the foregoing, the preponderance of the evidence is against the claim, and therefore the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The claim must be denied.  

B.  Sleep disorder.

At the outset, the Board finds that the medical evidence is against a finding that the Veteran's sleep disturbance is due to an undiagnosed illness.  The medical evidence of record suggests that the Veteran's sleep disturbance is related to his degenerative disc disease for which service connection has been established.  There is no evidence ascribing this symptom to any other cause, other than the Veteran's assertion that this is due to some type of undiagnosed illness.  Although the July 2006 VA examiner reported that the Veteran had sleep disturbance secondary to chronic strain, that opinion was provided without the examiner having reviewed the claims folder; the opinion was based solely on contentions reported by the Veteran.  On the contrary, following the VA examination in March 2012, the examiner noted that is no documentation supporting the onset of sleep problems either during the gulf war or in the year following his return from Southwest Asia.  The examiner further noted that there are no complaints of sleep problems in the STRs.  Therefore, the examiner opined that it is less likely than not that the Veteran's sleep problems were incurred in or related to military service.  

The Board has considered the Veteran's contention that a relationship exists between his sleep disturbance and his period of service in the Persian Gulf.  In adjudicating this claim, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d at 1331; Washington v. Nicholson, 19 Vet. App. at 368- 69.  See Barr v. Nicholson, 21 Vet. App. at 303; see also 38 C.F.R. § 3.159(a) (2).  

In addition to the medical evidence noted above, the Board has considered the Veteran's written contentions with regard to his claim.  His statements are, at best, unsupported by the objective medical evidence of record; at worst, they are directly contradicted by clinical findings.  The Veteran's credibility must be questioned in light of the clinical evidence of record.  While the Veteran is competent to describe observable symptoms, those descriptions still must be credible and reflect some basis in fact for service connection purposes.  That credibility is absent here.  This is not a finding that all of the Veteran's statements are false; rather, they are not sufficiently supported by other evidence and far outweighed by the medical records showing no current finding of a sleep disorder or an underlying disability manifested by sleep disturbance.  

For all of these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for disability manifested by sleep disturbance, to include as due to an undiagnosed illness or other qualifying chronic disability, and the claim must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

IV.  Legal Analysis-Higher Evaluation.

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes.  38 C.F.R. § 4.27.  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, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  

The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.  However, the Board also notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  

The Board notes that the intent of the rating 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.  38 C.F.R. § 4.59.  

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.  

Historically, the Veteran's  service-connected degenerative disc disease of the lumbar spine has been rated as 10 percent disabling from September 20, 1995, and 20 percent disabling from March 6, 2012, under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237.

Diagnostic Code 5010 is rated under Diagnostic Code 5003.  Under Diagnostic Code 5003, a 10 percent rating is assigned for x-ray evidence of arthritis in two or more major joints or two or more minor joint groups with some objective evidence of limitation of motion otherwise noncompensable under the appropriate diagnostic codes.  A 20 percent rating is awarded where the arthritis also causes occasional incapacitating exacerbations.  These ratings are not to be combined with ratings based on limitation of motion.  Id. at Notes (1) and (2).  

The Veteran's service-connected degenerative disc disease of the lumbar spine is to be evaluated under Diagnostic Code 5237.  Under that diagnostic code and others for evaluating the spine, the General Rating Formula for Diseases and Injuries of the Spine is used.  The General Rating Formula provides that 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 20 percent rating is warranted 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.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a (Diagnostic Code 5242).  

Following the rating criteria, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  

Note (2): (See also Plate V.) [With respect to the lumbar spine]--For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  

Note (4): Round each range of motion measurement to the nearest five degrees.  

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or 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 due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a.  

Additionally, the Diagnostic Code pertaining to rating the Veteran's disability provides that intervertebral disc syndrome may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Under this formula, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a (Diagnostic Code 5243).  

Following the rating criteria, Note (1) provides that: For purposes of evaluations under Diagnostic Code 5243, 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.  

Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (Diagnostic Code 5243).  

A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  

A.  A Rating in excess of 10 percent.  

After a review of the record, the Board finds that the Veteran's low back disorder warranted a 20 percent rating under the general formula prior to March 16, 2012.  In this regard, the Board notes that, on the occasion of the VA examination in August 2004, the Veteran's low back disorder was productive of forward flexion of the thoracolumbar spine to 95 degrees.  Range of motion was associated with mild pain and the Veteran had paravertebral muscle spasms.  It was noted that joint function was additionally limited by pain, fatigue and weakness secondary to repetitive use and flare ups.  The Board also acknowledges that the July 2006 VA examination indicates that the Veteran's back disorder produced a forward flexion to 60 degrees; however, the examiner also noted that the range of motion was with moderate limitation of pain.  It was also noted that the Veteran had increased muscle tightness and palpable spasms of his lumbar spine during repetitive range of motion.  The examiner further noted that he had increased weakness of his lumbar spine.  In addition, the Board also considers the Veteran's description of his back pain at the September 2007 hearing, stating that he had constant pain on a daily basis and rated the pain as 8 out of 10.  On examination in October 2007, range of motion was limited and guarded.  Forward flexion was to 60 to 65 with moderate pain and further range of motion was limited.  He reported that lateral rotation mostly caused more pain and spasms and he avoided doing this.  

In light of the above clinical findings, the Board concludes that the Veteran's actual functional impairment is greater than measured range of motion would indicate, and is the functional equivalent of limitation of flexion to 60 degrees or less due to pain, weakness, fatigue, or incoordination.  Thus, the criteria for a 20 percent rating are more nearly approximated prior to April 14, 2010, than those for a 10 percent rating.  This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

As for whether an even higher rating was warranted, the Board notes that, even considering the Veteran's subjective complaints of pain, the medical evidence of record did not note any additional limitation of motion demonstrated upon repetitive motion that would support an evaluation in excess of the 20 percent level because it does not cause flexion of the lumbosacral spine to be 30 degrees or less.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013).  

While the Veteran asserts that a higher rating is warranted, and that the impact on his daily activities is more severely disabling, his statements are non-specific with respect to the rating criteria, and are therefore less probative than the clinical findings made by skilled professionals.  The presence of pain, as described by the Veteran, is certainly a component of disability (and is the basis for the award of the 20 percent rating); however, there is no suggestion that functional loss due to pain is tantamount to limitation of flexion to 30 degrees or less, which is what is required for a rating higher than 20 percent.  As such, the Board concludes that a rating higher than 20 percent under the General Rating Formula is not warranted. 

Moreover, a rating in excess of 20 percent under the General Formula is not warranted as ankylosis has not been evident at any time during this time period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that in the absence of ankylosis, the Board may not rate a service-connected cervical spine disability as ankylosis).  

The Board also finds that a higher rating is not warranted since the award of service connection under the Formula for Rating Intervertebral Disc Syndrome.  In this regard, the record does not show and the Veteran does not claim that his service connected low back disorder caused at least 4 weeks of incapacitating episodes in any 12 month period during this time period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).   Consequently, a 40 percent disability rating is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  Diagnostic Code 5243.  

Although a separate evaluation may be assigned for neurological deficits, the most probative evidence establishes that the Veteran does not have neurological deficits.  In this regard, the Veteran was found to be neurologically normal on VA examination.  In light of these findings, the Board finds that a separate evaluation for neurological impairment or a rating in excess of 30 percent is not warranted.  This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In summary, for the reasons expressed above, the Board finds that the criteria are met for the assignment of a 20 percent rating for degenerative disc disease of the lumbar spine effective prior to March 16, 2012.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  

B.  A Rating in excess of 20 percent.

The evidence contained in the medical statement from Dr. Gabrielson, dated April 14, 2010, tends to show a worsening of the Veteran's service-connected lumbar spine disability as of that time.  In that statement, Dr. Gabrielson reported that the Veteran was able to flex to 30 degrees.  He was unable to squat and rise to a standing position.  He was also unable to stand on his toes.  The increased disability of the Veteran's lumbar spine was reflected in the recent VA examination in March 2012, at which time it was reported that the Veteran was able to flex to 60 degrees; however, he began experiencing pain at 30 degrees.  In addition, there was some tenderness to palpation for joints and some minimal spasm of the paraspinal muscle bilaterally.  Therefore, with resolution of reasonable doubt in the Veteran's favor, the evidence shows that the Veteran's motion of the thoracolumbar spine was limited to 30 degrees with consideration of painful motion and other factors.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7 (1995).  With reasonable doubt resolved in the Veteran's favor, the Board finds that, the Veteran's service-connected degenerative disc disease of the lumbar spine has as likely as not resulted in disability tantamount to limitation of flexion of the thoracolumbar spine to 30 degrees with consideration of painful motion, weakness, and fatigability during repetitive motion and flare-ups.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  In view of the finding, the Board concludes that a 40 percent rating is warranted.  See 38 C.F.R. § 4.71a (Diagnostic Code 5201).  Because the increase in severity was first identified by the April 14, 2010 medical statement from Dr. Gabrielson, the effective date of the 40 percent rating is April 14, 2010.  This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

However, a rating in excess of 40 percent under the General Formula is not warranted as ankylosis has not been evident during this time period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Johnston, supra.  .

A higher rating is also not warranted since the award of service connection under the Formula for Rating Intervertebral Disc Syndrome.  The record is devoid of evidence of incapacitating episodes.  While the Veteran has indicated that he is currently employed and has been unable to work due to his back disorder, he has not describe himself as being incapacitated.  There is no indication that any physician has ever prescribed bed rest as a result of the Veteran's back pain, and there is no evidence of any incapacitating episodes.  Thus, with regard to rating the Veteran's disability under the criteria for intervertebral disc syndrome, the VA medical examinations of record and private medical records do not reflect the occurrence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Consequently, a 60 percent disability rating is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  Diagnostic Code 5243.  

Although a separate evaluation may be assigned for neurological deficits, the most probative evidence establishes that the Veteran does not have neurological deficits.  In this regard, during the March 2012 VA examination it was noted that the Veteran did not have any radicular pain or other sings or symptoms due to radiculopathy.  The examiner also stated that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems).  In fact, the examiner noted that the Veteran does not have IVDS of the thoracolumbar spine.  In light of these findings, the Board finds that a separate evaluation for neurological impairment or a rating in excess of 40 percent is not warranted.  This is true throughout this time period and therefore further consideration of a staged rating is not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In summary, for the reasons expressed above, the Board finds that the criteria are met for the assignment of a 40 percent rating for degenerative disc disease of the lumbar spine effective from April 14, 2010.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  

Conclusion

The Board also notes that each of the ways by which the thoracolumbar spine is ratable, other than some of those described in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013), contemplates limitation of motion.  Also see VAOPGCPREC 36-97; 63 Fed. Reg. 31262 (1998).  Therefore, assigning separate ratings on the basis of both a strain and other symptoms, such as those set forth in Diagnostic Code 5242, would be inappropriate.  38 C.F.R. § 4.14 (2013).  

As to the Veteran's claim that his disorder is worse than rated, under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found 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 veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's condition with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  

The Board further observes that, even if the available schedular evaluation for the disability was inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  There simply is no objective evidence that his disability, acting alone, has resulted in frequent periods of hospitalization or in marked interference with the Veteran's employment.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.

In short, there is nothing in the record to indicate that the service-connected disability cause impairment with employment over and above that which is contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of these issues for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) is not warranted at any time during the pendency of the appeal. 

As to the various lay statements found in the record, while the Veteran is competent and credible to report on what he can see and feel and others are competent and credible to report on what they can see, the Board finds more probative the opinions provided by the medical experts at the VA examinations as to the severity of his service-connected disability than these lay claims.  See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). 

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, because the most probative evidence is against the Veteran's claims to the extent outlined above, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for a chronic disability manifested by joint pain, to include as due to undiagnosed illness or secondary to service-connected disability, is denied.  

Service connection a chronic disability manifested by sleep disturbance, to include as due to undiagnosed illness, is denied.  

A rating of 20 percent for degenerative disc disease, lumbar spine, for the period prior to April 14, 2010 is granted, subject to the applicable laws and regulations governing the payment of monetary benefits.  

A rating of 40 percent for degenerative disc disease, lumbar spine, is granted, effective from April 14, 2010, subject to the laws and regulations governing the payment of monetary benefits.  


REMAND

As to the claim for a TDIU, the Board notes that while the appeal was in remand status, the Veteran was granted service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent rated effective June 7, 2010.  Moreover, in the above decision that Board granted the Veteran's service-connected degenerative disc disease of the lumbar spine a 20 percent rating prior to April 14, 2010, and a 40 percent rating effective from April 14, 2010.  Additionally, the record shows that the Veteran service connected left index finger disability has been rated as 10 percent disabling at all times during the pendency of appeal.  Therefore, his combined evaluation as of April 14, 2010, met the 70 percent schedular requirements for TDIU under 38 C.F.R. § 4.16(a) (2013).  

However, while the post-remand record shows that VA obtained an opinion as to the impact his service-connected degenerative disc disease of the lumbar spine has on his employability, it does not show that a medical opinion was obtained as to the collective impact the Veteran's newly service connected PTSD, along with his service connected degenerative disc disease of the lumbar spine and left index finger disability, has on his employability.  Therefore, the Board finds that a remand to obtain such an opinion is required.  See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). 

The Veteran reported that he receives ongoing treatment from Montgomery VA Medical Center.  However, his post-January 2011 treatment records are not found in the claims file.  Therefore, the Board finds that while the appeal is in remand status these treatment records should be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). 

Accordingly, this issue is REMANDED to the RO/AMC for the following actions:

1.  Associate with the claims file, physically or electronically, all of the Veteran's post-January 2011 treatment records from the Montgomery VA Medical Center.  All actions to obtain the requested records should be documented fully in the claims file

2.  After undertaking the above development to the extent possible, provide the Veteran with an appropriate VA examination with respect to his TDIU claim.  The claims file should be made available to the examiner.  The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, individually or in the aggregate, render him unable to secure or maintain a substantially gainful occupation at any time from 2003.  In offering this opinion, the examiner must acknowledge and take into account this Veteran's education, training, and work history.  All conclusions should be accompanied by a rationale.

3.  After undertaking any other needed development, readjudicate the claim.  If the benefit sought on appeal is not granted in full, the Veteran should be provided a supplemental statement of the case (SSOC) that includes notice of all relevant the laws and regulations as well as citation to all evidence received since the issuance of the October 2012 supplemental statement of the case.  A reasonable period of time should be allowed for response before the appeal is returned to the Board.

The appellant 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



____________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs