Citation Nr: 1410173 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-30 963 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis and L5 par defects, prior to January 1, 2014, and in excess of 0 percent from January 1, 2014. 2. Entitlement to service connection for rod cone retinopathy. 3. Entitlement to service connection for a right knee condition, to include as secondary to a service-connected back disability. REPRESENTATION Appellant represented by: Joseph Davis, Agent ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to July 1977 and from September 1980 to September 1983, and September 1986 to September 1990. These matters come before the Board of Veterans' Appeals (BVA or Board) from October 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Togus, Maine. The Indianapolis, Indiana RO currently has jurisdiction of the claim. In the October 2009 rating decision, the RO granted service connection and assigned a 10 percent disability rating for the Veteran's low back condition. In an April 2013 rating decision, the RO proposed reducing the 10 percent rating to 0 percent. The Veteran was given 60 days to submit additional evidence. The Veteran did not submit additional evidence within the time period and the RO decreased the Veteran's disability rating to 0 percent in an October 2013 rating decision. However, because the Veteran's appeal originated from the October 2009 rating decision that granted service connection, he is appealing the original assignment of a disability evaluation following an award of service connection. Thus, the claim actually involves the propriety of the initial disability rating assigned during the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). The RO, in effect, assigned a stated rating. Thus, the issue on appeal does not include the question of the propriety of the reduction. The claim is as noted on the title page. In the January 2010 rating decision, the RO denied service connection for rod cone retinopathy. The issues of entitlement to service connection for a right knee condition and for rod cone retinopathy 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. FINDING OF FACT The Veteran's service-connected low back disability was not shown to be productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 prior to January 1, 2014; or, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height from January 1, 2014. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for the Veteran's lumbar spondylosis and L5 par defects prior to January 1, 2014 and in excess of 0 percent from January 1, 2014 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.40, Diagnostic Code 5239 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue on appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection for his low back condition. Once service connection is granted, a 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). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The RO has obtained all of the Veteran's service treatment records. The Veteran underwent VA examinations in May 2009 and December 2012. Each of the examination reports considered the Veteran's medical history, including his lay statements; described the Veteran's disabilities in sufficient detail; and fully described the functional effects caused by the Veteran's disabilities. These examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10, see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). In determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 505. In rating musculoskeletal disabilities, it is appropriate to consider additional limitation of function due to factors such as pain, weakness, incoordination and fatigability. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The rating schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), except for intervertebral disc syndrome, which is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. As discussed below, the evidence in this case does not demonstrate that the Veteran's intervertebral disc syndrome is related to his service-connected low back disability. Therefore, a rating under Diagnostic Code 5243 is not warranted. Under the General Rating Formula, a 10 percent rating is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is appropriate where there is 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 rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is awarded for unfavorable ankylosis of the entire 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 combined range of motion of thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2), Note (4). During the course of the appeal, the Veteran's back disability has been evaluated under Diagnostic Code (DC) 5239 and assigned a 10 percent rating from November 19, 2008, and 0 percent rating, from January 1, 2014. In March 2009, the Veteran underwent a physical examination by a VA nurse practitioner. She noted full range of motion of the spine with no tenderness or deformities. VA treatment records from May 2009 show complaints of chronic low back pain. The Veteran stated that his back pain began when he fell in the Navy. He rated his pain as a 1, and reported that he has not taken pain medication since the 1980's. The Veteran was afforded a VA examination in May 2009, where he reported dull and throbbing back pain. The Veteran presented the following range of motion: 90 (forward flexion), 20 (extension), 30 (left lateral flexion), 30 (right lateral flexion), 70 (right rotation), and 70 (left rotation). The Veteran's range of motion was not accompanied by pain. Furthermore, there was no evidence of pain, fatigue, weakness, lack of endurance, or incoordination after repetitive testing. The VA examiner noted erectile dysfunction, tenderness over L4/L5, and knee jerks at 1+. However, sensory and motor tests were normal and no neurological abnormalities were found. There was no evidence of guarding, or an abnormal gait. The VA examiner noted that pain limited the Veteran's mobility, activities of daily living, occupation, and recreational activities. X-ray findings showed mild anterior vertebral body osteophytes, particularly at L4 and L5. Mild disc space narrowing at L5-S and bilateral L5 pars defects without spondylolisthesis. The examiner's impression was bilateral L5 pars defects without spondylolisthesis; otherwise, mild degenerative disease of the lumbosacral spine. The diagnosis was lumbar spondylosis and L5 pars defects. In June 2009, the Veteran was afforded a VA examination for hip pain. The VA examiner noted that the Veteran's hip pain is more likely than not related to the pars defects in his spine. In September 2009, the Veteran underwent an eye examination with the Social Security Administration (SSA). The SSA examiner noted that the Veteran's range of motion in the lumbar spine was normal and that there was no evidence of an abnormal gait. VA treatment records from May 2010 show complaints of dull, constant back pain, which has worsened over time. Although, the Veteran denied radiating pain, he complained of erectile dysfunction. Specifically, he reported difficulty achieving erections in the morning. The Veteran was seen by VA in January 2011. Although he continued to complain of chronic low back pain, the Veteran stated that he was not taking nor wanted to take medications. The Veteran denied radicular symptoms and loss of bowl or bladder control. September 2012 VA treatment records show further complaints of back pain. However, the VA physician concluded that the Veteran has no acute issues that prevent him from doing "day to day jobs." The Veteran was afforded another VA examination in December 2012. The Veteran presented with the following range of motion: 90 (forward flexion), 30 (extension), 30 (left lateral flexion), 30 (right lateral flexion), 30 (right rotation), and 30 (left rotation). The VA examiner did not observe pain on motion or limitation of motion after repetitive testing. Neurological abnormalities were not found. Straight leg raising tests were negative and muscle strength tests were normal. The Veteran also exhibited normal reflexes. The diagnosis was lumbar spondylosis and L5 pars defect. The VA examiner noted that the Veteran's low back condition did not impact his ability to work. A VA medical opinion was obtained in September 2013, where the examiner diagnosed mild degenerative disc disease. The examiner found that the Veteran's mild degenerative disc disease is less likely than not due to his service-connected lumbar spondylosis. She reasoned that discs change during the aging process and that the Veteran's mild degenerative disc disease is age appropriate. The Board finds that an initial rating in excess of 10 percent prior to January 1, 2014 is not warranted. At the May 2009 examination, the Veteran's forward flexion was 90 degrees. During the December 2012 VA examination the Veteran's forward flexion was 90 degrees. The Veteran's range of motion was not accompanied by pain or additionally limited after repetitive testing at either examination. Therefore, the weight of the evidence demonstrates that the Veteran has forward flexion of the thoracolumbar spine greater than 60 degrees. Accordingly, the Board finds that a rating in excess of 10 percent prior to January 1, 2014 is not warranted on this basis. A rating in excess of 10 percent is also not warranted based on the combined range of motion of the thoracolumbar spine. At the May 2009 VA examination, the Veteran presented with the following range of motion: 90 (forward flexion) +20 (extension) + 30 (left lateral flexion) + 30 (right lateral flexion) + 70 (right rotation) + 70 (left rotation) = a total of 310. The VA examiner noted that the Veteran's range of motion was not accompanied pain. At the December 2012 VA examination, the Veteran demonstrated the following range of motion: 90 (forward flexion) + 30 (extension) +30 (left lateral flexion) + 30 (right lateral flexion) + 30 (right rotation) + 30 (left rotation) = a total of 240. The VA examiner indicated that the Veteran's range of motion was not accompanied by pain or additionally limited following repetitive testing. As the Veteran's combined range of motion of the thoracolumbar spine, is greater than 120 degrees, a rating in excess of 10 percent is not warranted on this basis. The evidence also does not indicate that the Veteran experienced muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. The May 2009 VA examiner noted that the Veteran had no guarding or abnormal gait. September 2009 SSA records also reveal a normal gait. Likewise, the December 2012 VA examiner noted that the Veteran's gait was normal and that there was no evidence of a muscle spasm, guarding or tenderness. Therefore, the evidence of record does not show that a rating in excess of 10 percent is warranted for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Furthermore, the Board finds that a rating under Diagnostic Code 5243 is not warranted. The September 2013 VA examiner found that the Veteran's mild degenerative disc disease is less likely than not due to his service connected lumbar spondylosis. She concluded that his mild degenerative disc disease is due to the aging process, rather than his service-connected low back condition. Additionally, the Board finds that a separate rating for neurological abnormality is not warranted. At the May 2009 examination, the Veteran did not exhibit or complain of numbness, dizziness, weakness, bladder problems or bowel dysfunction. The Board notes that the Veteran reported symptoms of erectile dysfunction during the May 2009 examination. However, the RO denied the Veteran's service connection claim for erectile dysfunction as secondary to his back condition in a September 2011 rating decision. Furthermore, VA treatment records from May 2010 and January 2011 reveal no complaints of radiating pain or loss of bowel or bladder control. The December 2012 VA examination report did not reflect any neurological abnormalities. The Veteran's deep tendon reflexes were normal. His gait was normal. No bowel dysfunction or bladder problems were observed. Straight leg raising tests were negative. The December 2012 VA examiner did not find any signs or symptoms of radiculopathy. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to January 1, 2014. The Board finds that a compensable rating is also not warranted from January 1, 2014. There is no evidence submitted after January 1, 2014 that shows that the Veteran is entitled to a compensable rating. Therefore, a higher rating in excess of 0 percent from January 1, 2014 is not warranted. The Board has considered the Veteran's statements regarding back pain. The Veteran is competent to report symptoms of pain and the Board finds him generally credible in this regard. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Here, the May 2009 and December 2012 VA examiners noted that the Veteran's range of motion was not accompanied pain or additionally limited after repetitive testing. Furthermore, VA treatment records from May 2009 and January 2011 show that the Veteran has not taken or wants to take pain medication. The Board finds that these medical findings are more probative than the Veteran's assessment of the severity of his low back disability. The Board has also considered whether referral for extraschedular consideration is indicated. The discussion above reflects that the symptoms of the Veteran's back disability (mainly pain) are contemplated by the applicable rating criteria. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has not made any assertions of unemployability regarding his back disability and there are none raised by the record during the appeal period. Therefore, further consideration of TDIU is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for lumbar spondylosis and L5 par defects prior to January 1, 2014, and in excess of 0 percent from January 1, 2014 is denied. REMAND The Veteran seeks service connection for rod cone retinopathy, which he contends began in service. The Veteran was afforded a VA examination for his eye in January 2013. The examiner noted that the Veteran's eye condition was less likely than not incurred or caused by an in-service injury, event, or illness. In providing his negative opinion, the examiner relied largely on the gap between the Veteran's retinopathy diagnosis and separation from the military. The examiner did not consider the Veteran's statements that his eye condition was caused by an in-service head injury or that symptoms of retinopathy, such as color blindness, blurred vision, defective central vision, night blindness, and defective depth perception began in service. Therefore, an addendum medical opinion is necessary. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board also finds that further development is needed for the Veteran's service connection claim for a right knee condition, to include as secondary to a service-connected back disability. The medical evidence establishes a right knee condition and the Veteran's lay statements indicate that his right knee condition was caused by his service-connected back disability. Therefore, an examination and opinion should be obtained to address the etiology of the Veteran's claimed right knee condition and whether it was caused or aggravated by his service-connected back disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Allen v. Brown, 7 Vet.App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the Veteran's VA examination in January 2013, or to a qualified medical professional if the examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current eye condition was incurred or caused by an in-service injury, event, or disease. The requested opinion should take into consideration all relevant medical evidence, as well as the Veteran's own assertions of an in-service head injury and in-service symptoms. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should state and explain why an opinion cannot be provided without resort to speculation. 2. Schedule the Veteran for an orthopedic evaluation to determine the nature and likely etiology of his right knee condition. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current right knee condition was incurred or caused by an in-service injury; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition was caused or aggravated by his claimed back disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, readjudicate the Veteran's claims with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an appropriate period of time within which to respond. The Appellant 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. 2013). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs