Citation Nr: 1428362 Decision Date: 06/23/14 Archive Date: 07/03/14 DOCKET NO. 07-03 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for a right hip cyst. 2. Entitlement to extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1987 and from January 1988 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction over the appeal was since transferred to the RO in Chicago, Illinois. In a March 2009 rating decision, the RO granted the Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy a higher 20 percent rating effective from January 1, 2007. In this regard, because these higher evaluations are not the maximum ratings possible under the law, the Board finds that these issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). The Board remanded the appeal in November 2010. In an August 2013 decision, the Board noted that a healthcare provider opined in January 2006 that the Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome prevented him from working. The Board observed that the Veteran was already in receipt of a total disability rating based on individual unemployability (TDIU). The Board concluded that the 2006 opinion reasonably raised a claim for extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for this disability. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). The matter was included in the issues on appeal, and remanded for action by the AOJ. The August 2013 decision addressed a claim of entitlement to service connection for traumatic brain injury and various claims regarding the evaluation of service-connected disabilities. In addition to the extraschedular issue described above, the Board also remanded the issue of entitlement to an initial compensable rating for a right hip cyst. In the November 2010 Remand, the Board referred to the agency of original jurisdiction (AOJ) for appropriate action the Veteran's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) and secondary service connection for kidney and urethra damage or alternatively a claim of entitlement to compensation for kidney and urethra damage under the provisions of 38 U.S.C.A. § 1151 (West 2002) as well as his claim for special monthly compensation due to the requirement of aid and attendance of another person. It does not appear that action has been taken on these claims. Therefore, they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Right hip cyst is not productive of any functional limitation; there is no scar associated with the service-connected right hip cyst. 2. At no time during the appeal period has the Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy presented 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. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a right hip cyst have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805, 7819 (2013). 2. The criteria for an increased evaluation in excess of 10 percent from February 1, 2005 and 20 percent from January 1, 2007 on an extraschedular basis for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. § 3.321 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). An August 2004 letter discussed the evidence necessary to support a claim for service connection. The Veteran was informed of the allocation of responsibilities between himself and VA. Service connection for a right hip cyst, with a noncompensable evaluation, was granted in February 2005. In March 2006, the Veteran was advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully 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. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Moreover, although some notice letters were sent subsequent to the initial adjudication of the Veteran's claims, the Board finds that there was no prejudice as the issue decided herein were most recently readjudicated in an April 2014 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental SOC, is sufficient to cure a timing defect). The Board further notes that this is a case in which the Veteran has challenged the initial evaluation assigned following the grant of service connection for a right hip cyst. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect to VA's duty to assist, service treatment records and VA treatment records have been obtained and associated with the claims file. VA examinations have been conducted, and the Board finds that the most recent January 2014 examination was adequate in that it was conducted by a clinician who reviewed the record, interviewed the Veteran, and performed appropriate examinations. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Right Hip Cyst Service treatment records include an April 2004 CT scan report indicating a well-defined lesion along the superior iliac margin of the right sacroiliac joint. There was slight asymmetry in the amount of hip joint fluid, which was greater on the right. There was slight increased T2 signal and slight enhancement of the medial right joint, which the reviewed indicated might be traumatic. A subsequent April 2004 treatment report indicates a history of parachute landing injuries in 1992 and 1996. Objectively, the Veteran had pain in the right hip. The provider noted that MRI examination revealed fluid on the right hip with focal enhancement of the medial right acetabulum. Service connection, with a noncompensable evaluation, was granted for a right hip cyst in a February 2005 rating decision. The RO noted that service treatment records revealed findings of a lesion on the right hip in March 2004, and that VA examination had diagnosed a right hip cyst. This disability was evaluated pursuant to 38 C.F.R. § 4.118, diagnostic code 7819, for benign skin neoplasms. Notably, this rating decision also granted service connection for remote inferior fracture of the right pelvis. The RO indicated that service treatment records showed treatment for right hip and pelvis pain in March 2004, and possible right hip stress reaction or labral injury in May 2004. This disability was evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, diagnostic code 5252, for limitation of flexion of the thigh. Review of VA treatment records is negative for any diagnosis or abnormal finding reflective of a scar or skin disability of the right hip. On VA examination in January 2014, the examiner specified that there was no scar associated with the Veteran's right hip. The Veteran's right hip cyst is evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, diagnostic code 7819, for benign skin neoplasms. This code directs that such be rated as disfigurement of the head, face, or neck (diagnostic code 7800), scars (diagnostic codes 7801, 7802, 7803, 7804, or 7805), or based on impairment of function. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective in October 2008. The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim for increase in February 2006. Therefore, the schedular criteria in effect prior to the October 2008 revisions are applicable. Scars, other than head, face, or neck, that are deep or that cause limited motion are rated under 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802. Scars in widely separated areas, as in two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separated rated and combined in accordance with § 4.25 of this part. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. Diagnostic Code 7804. This criteria provides a 10 percent evaluation for scars which are superficial and painful on examination. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Other scars are rated based upon limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Having considered the foregoing, the Board concludes that a compensable evaluation is not warranted for a right hip cyst. The medical evidence demonstrates no functional limitation associated with this disability. Rather, there has been no scar or other skin disability shown to be associated with the Veteran's right hip. In essence, no functional impairment has been attributed to this disability. The Board acknowledges that the Veteran has symptoms associated with this right hip and pelvis. However, such are addressed in the evaluation of the service-connected remote inferior fracture of the right pelvis. As such, the Board has determined that the currently assigned noncompensable rating for the right hip cyst is appropriate. The preponderance of evidence is against the Veteran's claim for increase. Accordingly, the claim is denied. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 evidence does not show, during the period in question, such an exceptional disability picture that the available schedular evaluations for the service-connected lumbar spine disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's possible disability level and symptomatology. Notably, there are no symptoms associated with the cyst itself. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations or any, for the right hip cyst. Additionally, the record for this period does not show marked interference with employment due to a right hip cyst. The record shows that the Veteran has symptoms associated with his right hip; however, those functional limitations are contemplated by an evaluation of his service-connected remote inferior fracture of the right pelvis, not the cyst on appeal. As noted above, any functional limitation is already contemplated in the ratings currently assigned. There is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the Veteran's right hip cyst causes impairment over and above that which is contemplated in the assigned schedular rating. 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 this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Extraschedular Ratings for Low Back Disability As noted by the Board in August 2013, the record raises the question of whether extraschedular ratings are warranted for the Veteran's lumbar spine disability. The Board adjudicated the schedular ratings for these conditions in the August 2013 decision. In that decision, the Board determined that schedular ratings in excess of those already assigned were not warranted under the criteria applicable to the evaluation of this disability. The scope of review in the present appeal is strictly limited to the issue of entitlement to an increased evaluations on an extraschedular basis. See VAOPGCPREC 6-96 (August 16, 1996); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. During VA examination in September 2004, the Veteran complained of low back pain with flare-ups once a day and pain radiating into his right foot. He also complained that his low back pain prevented him from running. On examination, range of motion for the thoracolumbar spine taking into account pain was flexion to 70 degrees, extension to 30 degrees, right tilt to 22 degrees, left tilt to 27 degrees, left rotation to 25 degrees, and right rotation to 25 degrees. Reflexes in the knees were 2/5. Straight leg raise testing was positive on the right side. The thoracolumbar spine showed no evidence of spasms, but the Veteran had slight discomfort over the right S1 joint and sciatic notch. Muscle strength was 5/5. There was no muscle atrophy. A November 2005 magnetic resonance imaging evaluation (MRI) of the lumbosacral spine showed degenerative joint disease, degenerative disc disease at L4-L5 and L5-S1, and disc herniations at L4-L5 and L5-S1. During a December 2005 VA neurological/headaches examination, the examiner reported that motor examination revealed no weakness or atrophy. Normal tone was also noted. Deep tendon reflexes were 2 bilaterally. The Veteran's toes were down going bilaterally. Sensory examination was normal to light touch, pin prick, and position. However, the Veteran had reduced vibration sense, bilaterally, up to the knees. As to coordination, bilateral knee to heel was intact. In January 2006, the VA treatment records show that the Veteran had a lumbar spine fusion with complications. In this regard, the Board notes that a March 2006 VA treatment record, generated just two months after this failed lumbosacral spine fusion, reported that its range of motion was flexion to 10 degrees, extension to degree, lateral movement to 10 degrees, and rotation to 10 degrees. Subsequently, at an August 2006 VA orthopedic examination, the examiner opined that the examination could not be performed because of the recent low back surgery, at the present time he had not obtained complete union of the fusion, and therefore an attempt to assess his permanent level of disability would be futile. At an August 2006 VA neurological/headaches examination, the examiner reported that motor examination revealed no weakness or atrophy, Tone was normal. Deep tendon reflexes were 2 bilaterally. The Veteran's toes were down going bilaterally. Sensory examination was normal to light touch, pin prick, position and vibration. As to coordination, bilateral knee to heel was intact. On VA examination in August 2007, the Veteran complained of chronic low back pain which was worse since his surgery. He reported that pain was made worse by sitting, standing, bending, lying on his stomach or side, and quick movements. At that time, however, he denied having any flare-ups. The Veteran was noted to ambulate with a cane or walker and indicated wearing a back brace. He walked with a slow antalgic gait and indicated that he considered himself unsteady even though he had not had any falls. He stated that he treated his pain with codeine, which helped at times. He indicated that he could walk for 10 to 15 minutes or one block before having to rest. He related that he would drive only in an emergency because it caused increased back pain. He stated that his wife helped him dress when his pain was really bad. He stated that he could shower using a seat. On examination, the spine and limbs were symmetric without obvious curvature, his head was mid-line, he had stiff and slow spinal motion, his posture was erect, his gait was slow and antalgic and he had no unusual shoe wear pattern. The range of motion of the thoracolumbar spine, taking into account pain as well as after three repetitions, was flexion to 45 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right rotation to 15 degrees, and left rotation to 10 degrees. There was no muscle tightness, tenderness, or spasms on palpation. The examiner indicated that there was no additional limitations in joint function. Neurological examination revealed decreased sensation to light touch over the left lateral lower extremity. However, sensation was grossly intact to sharp/dull discrimination. Strength was 4+/5 in both hamstrings and quads, -4/5 in both iliopsoas, and 5/5 in both EHL. Deep tendon reflexes were 1+/4 in both patella and Achilles. Straight leg raise testing was negative when sitting bilaterally. The diagnosis was anterior lumbar fusion with likely pseuodarthrosis L4-L5 and L5-S1 and degenerative disc disease with no evidence of radiculopathy. During VA lumbar spine examination in January 2011, the Veteran complained of chronic low back pain exacerbated by prolonged sitting and moving. He also complained that pain radiated to his left buttocks but not into either lower extremity. The Veteran stated that he treated his symptoms with medication, a TENS unit, and a back brace. He noted that he walked using either a cane or walker. He denied having flare-ups. He denied any incapacitating episodes. On examination, the range of motion of the thoracolumbar spine, taking into account pain as well as after three repetitions, was flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left rotation to 15 degrees. The examiner opined that weakness, lack of endurance, and incoordination were not factors. The Veteran had spinal tenderness but no spasms or preserved spinal contour. There was no ankylosis. The examiner noted that the Veteran was not in any acute distress. The Veteran stood with some difficulty. He had a decreased stride length and speed. Straight leg raise testing was negative. Neurological examination revealed 2+ and symmetric deep tendon reflexes in the knees and 1+ and symmetric deep tendon reflexes in the ankles. Sensation was preserved to light touch. Muscle strength in the lower extremities was 4+/5. It was opined that this low grade muscle weakness was caused by deconditioning and not a focal neurological deficit. Muscle tone was normal and there was no calf or thigh muscle atrophy. Lastly, the examiner opined that the Veteran was neurologically intact and did not have intervertebral disc syndrome. In February 2014, the AOJ submitted the Veteran's case for administrative review for a determination of whether an extraschedular evaluation was warranted for the Veteran's lumbosacral spine disability. The medical history of the disability was reviewed. The Director noted that the evidence did not show any recent surgical procedures, emergency room visits, or hospitalizations due to this disability. He also noted that the disability was assigned a 100 percent evaluation from January 2006 to December 2006 following the surgery described above. He concluded that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. He reasoned that the evidentiary record did not demonstrate that the symptomatology consistently associated with the disability was not wholly contemplated by the criteria utilized to assign the current and past evaluations. He determined that entitlement to an extra-schedular evaluation was not established for any period. The Board notes that there is no evidence in the claims file of frequent periods of hospitalization for the Veteran's lumbar spine disability. Additionally, there is nothing to show that the disability has created marked interference with employment in excess of what is contemplated in a schedular rating so as to render impractical the schedular rating criteria. Rather, the symptoms reported by the Veteran are those contemplated by the schedular rating criteria. The Board does not doubt that limitations caused by the service-connected lumbar spine disability have had an adverse impact on employability; however, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289 (1992); Van Hoose v. Brown, 4 Vet. App. 361 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Consequently, the Board finds that the assigned schedular ratings for the service-connected lumbar spine disability are adequate, and that extraschedular evaluation is not warranted. CONTINUED ON NEXT PAGE ORDER Entitlement to an initial compensable rating for a right hip cyst is denied. Entitlement to extra-schedular ratings in excess of 10 percent from February 1, 2005, and 20 percent from January 1, 2007, for lumbar spine degenerative disc disease with intervertebral disc syndrome and right lower extremity radiculopathy is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs