Citation Nr: 1545124 Decision Date: 10/22/15 Archive Date: 10/29/15 DOCKET NO. 09-00 072A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cardiac disability claimed as heart disease with clogged arteries. 2. Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative disc disease (DDD). 3. Entitlement to a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for radiculopathy of the right lower extremity. 4. Entitlement to a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for radiculopathy of the left lower extremity. 5. Entitlement to a total disability based on individual unemployability (TDIU) due to service connected disabilities prior to November 6, 2012 REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2012, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues were remanded for further development by the Board in April 2012 to obtain treatment records and to afford the Veteran a VA examination related to his back disability. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for heart disease and entitlement to TDIU prior to November 6, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Even considering the Veteran's pain and corresponding functional impairment, his low back disability manifested with forward flexion greater than 30 degrees, no ankylosis, and no incapacitating episodes. 2. The Veteran's right lower extremity radiculopathy manifested by no more than mild symptoms prior to November 6, 2012 and no more than moderate symptoms thereafter. 3. The Veteran's left lower extremity radiculopathy manifested by no more than mild symptoms prior to November 6, 2012 and no more than moderate symptoms thereafter. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for lumbosacral DDD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5242 (2015). 2. The criteria for a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Codes 8520 (2015). 3. The criteria for a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Codes 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated September 2007 and September 2008, the Veteran was informed of the information and evidence necessary to substantiate the claims. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A VCAA letter to the Veteran was provided prior to the initial unfavorable decision. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the September 2007 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided VA examinations in February 2008 and November 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. As such, the examination reports are adequate to decide the claim. Thus, further examination is not necessary regarding the issue on appeal. As noted above, the Veteran was afforded a hearing before the undersigned VLJ during which the Veteran and his representative presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who chairs 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, the VLJ explained the issue on appeal, the hearing focused on the elements necessary to substantiate the Veteran's claim, and the Veteran and his representative, through questioning and the Veteran's testimony, demonstrated actual knowledge of the elements necessary to substantiate his claim. Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2014), nor has either individual identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2015). Increased Rating - Lumbosacral Spine Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's lumbosacral DDD status post lumbar laminectomies is rated under Diagnostic Code 5242, which refers to the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever results in the higher evaluation. The general rating formula for diseases and injuries of the spine assigns disability ratings as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 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; Forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, disability ratings are assigned as follows: With incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months, a 10 percent rating is assigned. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is assigned. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is assigned. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is assigned. After a review of all the evidence, the Board finds that the Veteran does not meet the requirements for a disability rating of 40 percent. 38 C.F.R. § 4.71a. The Veteran receives little treatment for his back beyond over the counter medications and avoiding triggers such as prolonged standing, sitting, or bending. The Veteran's range of motion testing showed forward flexion to 40 degrees with pain at 20 degrees during the February 2008 VA examination. The examiner noted that when considering pain and repetition, the Veteran showed an additional five degrees of limitation. The Board notes that 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's pain upon repetition resulted in additional limitation of motion, which was noted by the VA examiners and considered in the application of the rating criteria to the Veteran's symptoms. Although his pain started at 20 degrees, the examiner specifically noted that it caused only an additional five degrees of limitation of motion. In a November 2012 VA examination, the Veteran's forward flexion was limited to 60 degrees. The examiner found no objective evidence of painful motion within that range. The Veteran performed repetitive use testing and showed no additional limitation of motion. The record shows no incapacitating episodes or ankylosis of the spine. The Veteran's radiculopathy symptoms have been rated separately. Therefore, based on the lack of incapacitating episodes, forward flexion of 30 degrees or less, or ankylosis of the spine, the Board finds that a disability rating in excess of 20 percent is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Increased Rating - Radiculopathy of the Lower Extremities As the Veteran's claim for an increase in his low back disability includes a claim of increase in the symptoms rated separately, the Board will address the right and left lower extremity radiculopathy ratings as well. These ratings will be addressed together as they stem from the same factual basis and are controlled by the same legal criteria. Sciatic nerve disabilities are rated at 80 percent where there is complete paralysis; the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating applies where there is severe incomplete paralysis with marked muscular atrophy. A 40 percent rating applies where there is moderately severe incomplete paralysis. Moderate incomplete paralysis is rated at 20 percent. Mild incomplete paralysis is rated at 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis of the sciatic nerve, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderately severe, incomplete paralysis where there is sciatic nerve involvement. 38 C.F.R. §§ 4.123, 4.124a, DC 8620. Neuralgia of the sciatic nerve, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. §§ 4.124, 4.124a, DC 8720. Prior to November 6, 2012, the Veteran's lower extremity radiculopathy was rated at 10 percent each. From November 6, 2012, the Veteran's lower extremity radiculopathy was assigned 20 percent ratings for each extremity. To receive a higher disability rating prior to November 6, 2012, the evidence must show moderate incomplete paralysis of the sciatic nerve. The evidence shows a constant dull pain that radiates to both legs. At no point are the Veteran's lower extremity symptoms indicative of more than a mild severity. Given the Veteran's symptoms and history, the Board finds that the Veteran's symptoms manifest to a mild level and a higher disability rating is not warranted during this period. To receive a higher disability rating prior to November 6, 2012, the evidence must show moderately severe incomplete paralysis of the sciatic nerve. Examination in November 2012 revealed decreased sensation in the lower leg, ankles, feet, and toes, with mild constant pain, paresthesias, and numbness. The examiner described the bilateral lower radiculopathy as mild. Given the Veteran's symptoms and history, the Board finds that the Veteran's symptoms manifest to no more than a moderate level and a higher disability rating is not warranted during this period. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's low back disability is manifested by pain and limitation of motion, while his radiculopathy is manifested by pain, numbness, and paresthesias. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of low back and radiculopathy symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran's entitlement to TDIU was separately adjudicated. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (distinguishing Rice). As the RO granted entitlement to TDIU in a December 2012 rating decision with an effective date of November 6, 2012, the Board will only discuss Rice prior to that date. The Board finds that extraschedular consideration should be considered for this period. Therefore, that issue is addressed in the remand below. ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral DDD is denied Entitlement to a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 10 percent prior to November 6, 2012 and in excess of 20 percent thereafter for radiculopathy of the left lower extremity is denied. REMAND The Veteran was afforded a VA examination in November 2012. The examiner reviewed the Veteran's claims file. He opined that the Veteran's heart condition was less likely than not incurred in or caused by the Veteran's service. The examiner based his opinion, in part, on the diagnosis of diabetes mellitus in 2005 that pre-dated the diagnosis of heart disease in 2006. The Board notes that an October 1999 VA treatment record showing ectasia of the thoracic aorta consistent with atherosclerotic cardiovascular disease. The examiner did not address this record and the Board finds that a medical opinion is necessary to determine if this record indicates an earlier onset of heart disease. The examiner should review the records and provide an addendum opinion. The Board notes that extraschedular consideration is provided for under 38 C.F.R. § 3.321(b)(1) when the record presents such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." The record shows that the Veteran retired from work in 2007 due to the pain from his service-connected disabilities. He worked as a car salesman and could no longer move in a way that allowed him to get in and out of cars or look under cars. This evidence suggests the possibility of marked interference with employability, despite the fact that the Veteran did not meet the schedular criteria until November 2012. The facts presently before the Board lead the Board to conclude that referral for extraschedular consideration of entitlement to TDIU prior to November 6, 2012 is warranted under the facts of this case. Accordingly, the case is REMANDED for the following action: 1. The RO should refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R § 3.321(b)(1) for TDIU prior to November 6, 2012. 2. Return the claims file to the November 2012 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner for a nexus opinion. The examiner should review the claims file, specifically the October 1999 VA treatment records showing atherosclerotic cardiovascular disease. The examiner should then answer the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's current heart disease began in service, was caused by service, or is otherwise related to service. A complete rationale for any opinion offered should be provided. If an additional examination is required for the examiner to sufficiently address this question, then a new examination should be afforded. 3. Should a new VA examination be found necessary, notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 4. After completion of the above and any other development deemed necessary, review the expanded record and determine if service connection is warranted and if the Veteran is entitled to TDIU on an extraschedular basis prior to November 6, 2012. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs