Citation Nr: 1417541 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 10-11 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation higher than 40 percent for degenerative disc disease DDD, thoracolumbar spine. 2. Entitlement to an initial evaluation higher than 30 percent for DDD, cervical spine, associated with DDD, thoracolumbar spine. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). 4. The propriety of reducing the initial evaluation of right (dominant) upper extremity cubital tunnel syndrome and right carpal tunnel syndrome (CTS) associated with cervical spine DDD, from 50 to 10 percent for the period October 1, 2013, forward. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran served on active duty from July 1959 to July 1962 and from September 1966 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that increased the evaluation of the Veteran's low back disability to 40-percent disabling and granted entitlement to service connection for the cervical spine disability, evaluated as 30-percent disabling, both effective in September 2006. The claims file was transferred to the RO in Atlanta, Georgia. The Veteran seeks the highest allowable rating, and he asserts he is unable to work due to his spine disability. Hence, the Board assumes jurisdiction of the issue of individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). After the Veteran's appeal, the Atlanta, GA, RO, in a December 2013 rating decision, decreased the right arm rating from 50 to 10 percent, effective in October 2013. The case was remanded in August 2013 to the Appeals Management Center (AMC), in Washington, DC, for additional development. The issues of entitlement to a TDIU and the propriety of reducing the initial evaluation of right (dominant) upper extremity cubital tunnel syndrome and right carpal tunnel syndrome (CTS) associated with cervical spine DDD, from 50 to 10 percent for the period October 1, 2013, forward, are discussed in the REMAND portion of the decision below and are REMANDED to the AMC. FINDINGS OF FACT 1. The AMC completed the additional development directed in the August 2013 Board remand. 2. There have been no incapacitating episodes due to either spine disability during the rating period on appeal. 3. The chronic orthopedic manifestations of the Veteran's thoracolumbar spine disability have manifested with chronic painful limitation of motion (LOM) of 0 to 30 degrees or less throughout the entire rating period. Ankylosis has not manifested. 4. The chronic orthopedic manifestations of the Veteran's cervical spine disability have manifested with chronic LOM of 0 to 15 degrees or less throughout the entire rating period. Ankylosis has not manifested. 5. Neither the Veteran's thoracolumbar nor cervical spine disability manifests with an exceptional disability picture. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 40 percent for the orthopedic manifestations of DDD, thoracolumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5243 (2013). 2. The requirements for an initial evaluation higher than 30 percent for the orthopedic manifestations of DDD, cervical spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1); see also 73 Fed. Reg. 23,353 (Apr. 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC No. 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The Board finds no record in the Virtual claims file that reflects the RO provided the Veteran with the requisite notice for his increased rating claim. There are duplicate copies of the same December 2006 VCAA notice letter related to another claim the Veteran filed. Thus, the Board is constrained to find the RO did not provide a pre-decision notice as required by the VCAA. Nonetheless, the Board finds no prejudice to the Veteran. First, the December 2006 letter fully informed the Veteran of the assistance VA would provide him with a claim. Second, the RO rendered a favorable decision, in that the rating for the thoracolumbar spine disability was increased, and service connection was granted for the cervical spine disability. Third, the Statement of the Case (SOC) included complete VCAA notice as to what was required to show a higher rating for the disabilities. This, in effect, provided the Veteran with actual knowledge of the evidence needed to show entitlement to a higher rating. Actual knowledge can cure a notice error. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). Fourth, the documentation in the claims file shows the Veteran had a meaningful opportunity to participate in the adjudication of his claim throughout the process. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Fifth, and lastly, neither the Veteran nor his representative has asserted any prejudice as a result of the absence of VCAA notice related to the October 2006 increased rating claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). As the Board noted in the August 2013 remand, the RO deemed an August 2008 statement (VA Form 21-4138) from the Veteran as a new claim for an increased rating, instead of a Notice of Disagreement (NOD), and issued a fully compliant VCAA notice letter that same month. Thus, the Board finds substantial compliance with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The RO obtained the private treatment records identified by the Veteran. Neither the Veteran nor his representative asserts that there are additional records to be obtained. While the Veteran may not have received full notice prior to the initial decision, as found above, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims. Further, the claim was re-adjudicated on a de novo basis, as shown in the Supplemental SOCs. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings where indicated by the evidence of record. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999). Rating Criteria The medical evidence of record reflects the Veteran is diagnosed with intervertebral disc syndrome (IVDS). The General Formula require IVS to be rated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, General Formula, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note 1. As discussed later in this decision, the Veteran did not have incapacitating episodes as defined by DC 5243. Further, the bedridden episodes the Veteran reported at one examination do not total at least six weeks. Hence, his spine disability must be rated on the basis of his chronic manifestations. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id., Note 2. The General 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 40-percent rating is warranted where motion of the thoracolumbar spine on forward flexion is 0 to 30 degrees or less; and, as concerns the cervical spine, where motion on forward flexion is 0 to 15 degrees or less, a 30-percent rating is warranted. Id. Associated neurological symptoms are to be rating separately under the appropriate DC. 38 C.F.R. § 4.71a, General Formula, Note (1). Generally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration, however, where a veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In the Veteran's case, the September 2007 rating decision awarded the highest allowable ratings based on LOM for both his cervical and thoracolumbar spine. Further, the medical evidence of record shows that, while the range of motion (ROM) of the Veteran's spine is significantly limited, neither the cervical nor thoracolumbar spine manifests with ankylosis of any type. Thus, the DeLuca criteria are not for application in this case. Id. As already noted, the Veteran has received the maximum allowable rating for the orthopedic manifestations of his thoracolumbar and cervical spine disabilities, as neither manifests with ankylosis. Further, he is rated separately for the neurological symptoms. Hence, the only means by which a higher rating may be awarded for the orthopedic symptoms is via extraschedular consideration. Although the Veteran is retired, he has asserted in a written submission that he is unable to work due to his upper extremity impairment. While that asserted impairment is related to the Veteran's neurological symptoms, the rating of which is not currently before the Board, the Board deems the issue of extraschedular consideration as raised by the evidence. See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). Extraschedular Consideration Legal Requirements In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service (Director), upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extraschedular rating. Bagwell, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008). If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the analysis then proceeds to second step of the inquiry. The second step requires the RO or Board to determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Director for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of a higher rating on an extraschedular basis. Thun, 22 Vet. App. 111. Analysis The Veteran's outpatient treatment records and the VA examination reports reflect the primary orthopedic symptoms he has reported is chronic cervical and thoracolumbar pain. The Veteran has historically reported his pain is constant the intensity of which he sometimes assessed as 10/10. In his November 2013 letter, the Veteran asserted VA did not understand his body and demanded VA tell him why his back hurts all of the time. The Board notes the General Formula specifically takes the Veteran's symptoms into account as part of the allowable ratings for spine disabilities. The drafters of the spine rating criteria commented as follows: In the case of spine disabilities, it would be rare for pain not to be present. Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. 68 Fed. Reg. 51,454-51,455 (Aug, 27, 2003). In light of the above, the Board finds the General Formula in fact describes and contemplates the Veteran's cervical and lumbar spine disabilities. This means the Veteran's spine disabilities do not manifest with an exceptional disability picture. Thun, 22 Vet. App. 111. In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The 40-percent rating for the lumbar spine disability, and the 30-percent rating for the cervical spine disability, compensates the Veteran for his earning impairment to the extent practical. 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.71a, General Formula, DC 5243. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an evaluation higher than 40 percent for DDD, thoracolumbar spine, is denied. Entitlement to an initial evaluation higher than 30 percent for DDD, cervical spine, associated with DDD, thoracolumbar spine, is denied. REMAND A December 2013 rating decision reduced the rating of the right upper extremity disability from 50 to 10 percent, effective October 1, 2013. The Veteran's December 2013 letter clearly indicates his disagreement with the reduction. See 38 C.F.R. § 20.201. In such cases, the appellate process has commenced and the claimant is entitled to a SOC on the issue. See Pond v. West, 12 Vet. App. 341 (1999); Manlicon v. West, 12 Vet. App. 238 (1999). The case is not sufficiently developed to decide the issue of unemployability. Accordingly, the case is REMANDED for the following action: 1. The RO shall issue a SOC with regards to the propriety of the reduction of the evaluation of the right upper extremity from 50 to 10 percent. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issue should this claim be returned to the Board. 38 U.S.C.A. § 7104 (West 2002). 2. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated the Veteran for his service-connected disabilities since August 2009. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. The AMC/RO is also asked to request the Veteran to provide all relevant employment information not already of record related to any work he has performed since February 2008. The information should include hours worked and the amount of all earnings. The AMC/RO will also seek relevant information from all employers identified by the Veteran for the noted period. The AMC/RO will document all efforts to obtain this information. 3. After the above is compete, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. 4. After completion of all of the above, the AMC/RO should ensure the Veteran's service-connected disabilities are properly evaluated and then re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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 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). ____________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs