Citation Nr: 1603974 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 11-27 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar spine strain. 2. Entitlement to an increased disability rating in excess of 10 percent for residuals of a fracture of the right (major) ring finger. REPRESENTATION Appellant represented by: John S. Berry, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. By that rating action, the RO granted serviced connection for lumbar spine strain; an initial 10 percent disability rating was assigned, effective December 22, 2003--the date VA received the Veteran's claim for service connection for this disability. The Veteran appealed the RO 's assignment of an initial 10 percent rating to the service-connected lumbar spine disability to the Board. Jurisdiction of the appeal currently resides with the RO in Lincoln, Nebraska. By a February 2015 rating action, the RO implemented a February 2015 Board decision, and assigned a 20 percent disability rating to the service-connected lumbar spine disability, effective December 22, 2003. (See February 2015 Board decision and RO's rating action). In its February 2015 decision, the Board remanded the issue of entitlement to an initial disability rating in excess of 20 percent for the service-connected lumbar spine disability. The appeal has returned to the Board for further appellate consideration. Concerning the issue of entitlement to an increased disability rating in excess of 10 percent for residuals of a fracture of the right (major) ring finger, a March 2010 rating decision implemented the Board's February 2010 determination that service connection was warranted for this disability. The RO assigned an initial 10 percent rating, effective, December 22, 2003--the date VA received the Veteran's initial claim for compensation for the right ring finger disability. The RO notified him of the determination and of his appellate rights that same month. In a July 2010 statement, the Veteran, through his attorney, disagreed with the initial 10 percent disability rating assigned to the service-connected right ring finger disability. (See Veteran's attorney's July 2010 letter to the RO). To date, however, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the agency of original jurisdiction (AOJ) for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue of entitlement to an increased disability rating in excess of 10 percent for residuals of a fracture of the right (major) ring finger is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the appellant if additional action is required on his part. FINDING OF FACT For the appeal period, the service-connected lumbar spine strain has been manifested by forward flexion to 90 degrees with frequent flare-ups of lumbar spine pain. Intervertebral disc syndrome or neurological manifestations including radiculopathy of the lower extremities have not been demonstrated. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for the service-connected lumbar spine strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.655(b), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. This appeal arises from disagreement with an initial 10 percent disability rating following the grant of service connection for a low back disability in the appealed May 2011 rating action. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated, any deficiency in the notice required by the Veterans Claims Assistance Act of 2000 (VCAA) is not prejudicial and further VCAA notice is generally not required. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess, supra. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that additional VCAA notice is not required when there is an appeal from an initial grant of service connection. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, in view of the foregoing case precedent, the Board finds that no further VCAA notice was required once VA awarded service connection for a low back disability in the appealed May 2011 rating action. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA and identified private treatment records have been obtained and associated with the record. In addition, pursuant to the Board's February 2015 remand, the Veteran was scheduled for a VA examination of his lumbar spine in September 2015, but he failed to report. As such, the adjudication of the initial rating claim must be based on the evidence that is of record. See 38 C.F.R. § 3.655(a), (b) (2015). In addition, by a July 2015 post-remand letter, the RO requested that the Veteran indicate any additional pertinent evidence that would support his initial rating claim, and he was provided authorization forms that would allow VA to obtain the records. (See RO's July 2015 letter to the Veteran). The Veteran did not respond to the RO's request. Thus, in view of the foregoing, the Board finds that there has been substantial compliance with the Board's remand directives concerning the matter adjudicated herein. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Thus, the Board finds that VA has fully satisfied the duties to notify and assist with respect to the claim adjudicated herein. In the circumstances of this case, additional efforts to assist or notify with respect to issue adjudicated herein in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the initial rating claim adjudicated herein. II. Legal Analysis The Veteran seeks an initial disability rating in excess of 20 percent for his service-connected low back disability. After a brief discussion of the general laws and regulations pertaining to initial ratings and specific criteria for evaluating spinal disabilities, the Board will proceed with its analysis of the claim. 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 (2015). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's lumbar spine disability is currently rated as 20 percent disabling under Diagnostic Code 5237 for degenerative arthritis of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. Diagnostic Code 5243 may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran's service-connected lumbar spine disability is rated under the General Rating Formula (General Formula) for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2015). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2015). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a rating of 20 percent is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS) (2015). As noted previously herein, this appealed was remanded by the Board in February 2015 primarily for a VA spine examination to evaluate the current level of severity of the Veteran's service-connected lumbar spine disability. Although an examination was scheduled, the Veteran failed to report for this examination. The action to be taken in instances where a veteran fails to report for a VA examination depends on whether the examination was scheduled in connection with an initial rating claim or a claim for an increase. An initial rating claim is an original compensation claim under 38 C.F.R. § 3.655(b) (2015). Thus, where a veteran fails to report for an examination, as here, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). The Board finds that the preponderance of the evidence of record is against an initial disability rating in excess of 20 percent for the service-connected low back disability under the General Formula, even with consideration of the DeLuca precepts. Under the General Formula, a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. Here, the Veteran demonstrated forward flexion to 90 degrees during March 2004 and May 2010 VA spine examinations. The March 2004 VA examiner opined that the Veteran had mild (italics added for emphasis) functional impairment of the spine because he had reported being cautious when he lifted items. The Board is cognizant of the Veteran's claim of having had flare-ups of lumbar spine pain every two (2) weeks that lasted for a duration of two (2) weeks during the May 2010 VA examination. However, that same examination report contains the examiner's conclusion that there was mild (italics added for emphasis) increase in lumbar spine pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss of motion with repetitive use. (See March 2004 and May 2010 VA spine examination reports). The Board notes that private chiropractic reports, prepared by Holl Family Chiropractic and Chiropractic Wellness Center, reflect that the Veteran had decreased range of motion of the lumbar spine; however, the overall measurement for the range of spine motion were not provided. (See January 2008 reports, prepared by Holl Family Chiropractic and June 2010 to November 2011, prepared by Chiropractic Wellness Center). Overall, in the absence of forward flexion of the thoracolumbar spine to 30 degrees or less, the preponderance of the evidence of record is against an initial rating in excess of 20 percent for the service-connected lumbar spine disability under the General Formula. The preponderance of the evidence of record is also against an initial disability rating in excess of 20 percent for the service-connected low back disability under the criteria for evaluating IVDS. Here, there is no evidence of IVDS where there are incapacitating episodes (as defined by regulation) having a total duration of at least four weeks but less than six weeks during the past 12 months--the criteria necessary for a 40 percent rating under IVDS. During the above-cited VA examinations, the Veteran was not diagnosed with IVDS. In addition, these same examination reports were negative for any evidence of any abnormal neurologic manifestations, such as radiculopathy of the lower extremities. Thus, a separate compensable rating for neurologic manifestations of the lumbar spine disability is also not warranted. Thus, the Board finds that the preponderance of the evidence of record is against an initial rating in excess of 20 percent for the service-connected low back disability under the criteria for IVDS. The Board further finds that a staged schedular rating for the service-connected low back disability is not warranted as the symptomatology associated with this disability has remained stable throughout the appeal. Fenderson, supra. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations addressing the service-connected lumbar spine disability document consideration of these principles, to include repetitive motion. There is no indication that increased compensation would be warranted for the service-connected lumbar spine under these principles. III. Extra-schedular Consideration The Board also has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1)(2015). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, 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 Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disability with the established criteria found in the rating schedule. The Board finds that this disability is fully addressed by the rating criteria under which such disability is rated. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria. Moreover, the service-connected lumbar spine disability requires application of the holdings in Deluca and Mitchell which require, in turn, consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected lumbar spine disability. As such, the Board need not proceed to consider the second factor: whether there are factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board notes that in addition to the service-connected lumbar spine disability addressed in the preceding analysis, the Veteran is in receipt of service connection for the follow disabilities: (i) amputation, 0.5 centimeter loss of distal phalanx, right (major) middle finger; (ii) residuals of a fracture of the distal phalanx right (major) ring finger; and, (iii) cornea scar of the right eye. In Johnson v. McDonald, 762 F3.d 1362 (2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." The Federal Circuit did not indicate whether its holding applied to all disabilities for which the Veteran was service-connected at the time of the Board decision or only to those disabilities for which the Veteran was seeking increased ratings and that the Board was adjudicating as part of its decision. In Johnson, the Veteran was in receipt of service connection for left knee degenerative changes in addition to rheumatic heart disease and right knee degenerative changes. The appellant argued that the Board erred in not collectively considering the collective impact of rheumatic heart disease and right knee disability, which were the only two increased rating claims that the Board was considering on the merits. The Board had remanded the claim for an increased rating for left knee degenerative changes to the AOJ for additional development. There was no argument before the Court or the Federal Circuit that the effect of the left knee disability should have been considered along with the other two disabilities. Consequently, the Board finds that, consistent with its interpretation of Johnson because the claim for an initial rating in excess of 20 percent for the service-connected lumbar spine disability is the only initial rating claim to warrant an adjudication on the merits at this time, this is the only disability that must be considered in the extra-schedular analysis. IV. Total Rating Based on Individual Unemployability Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the veteran. The functional impacts of the Veteran's service-connected lumbar spine disability were discussed at the VA examinations described above, and while this disability does result in some impairment of physical activity, there is no indication from this discussion, or any other evidence of record, that it has rendered the Veteran unemployable. In fact, at the close of the May 2010 VA spine examination, the examiner reported that the Veteran was employed fulltime as a firefighter, and that he had not lost any days from work as a result of his low back disability. Therefore, the issue of entitlement to TDIU is not raised in this appeal. In sum, the preponderance of the evidence is against the assignment an initial rating in excess of 20 percent for the service-connected low back disability. Therefore, the benefit of the doubt doctrine is not applicable, and this claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER An initial disability rating in excess of 20 percent for lumbar spine strain is denied. REMAND As noted in the Introduction, a March 2010 rating decision implemented the Board's February 2010 determination that service connection for residuals of a fracture of the right (major) ring finger was warranted. The RO assigned an initial 10 percent rating, effective, December 22, 2003--the date VA received the Veteran's initial claim for compensation for the right ring finger disability. The RO notified him of the determination and of his appellate rights that same month. In a July 2010 statement, the Veteran, through his attorney, disagreed with the initial 10 percent disability rating assigned to the service-connected right ring finger disability. (See Veteran's attorney's July 2010 letter to the RO). To date, however, the RO has not issued the Veteran an SOC with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the AOJ for the issuance of an SOC. Manlincon, supra. Accordingly, the case is REMANDED to the AOJ for the following action: Properly furnish the Veteran with an SOC pertaining to the issue of entitlement to an initial disability rating in excess of 10 percent for the service-connected residuals of fracture of the right (major) ring finger fracture. Also advise him that, upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of this claim to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should this claim be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302 (2015). The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs