Citation Nr: 1628501 Decision Date: 07/18/16 Archive Date: 07/28/16 DOCKET NO. 14-27 881 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a higher schedular rating for thoracolumbar osteoarthritis, degenerative disc disease, recurrent lumbar strain with scoliosis, intervertebral disc syndrome (lumbar spine disability), currently rated 20 percent disabling. 2. Entitlement to an initial schedular rating higher than 10 percent for status-post-left ankle surgery for peroneus brevis tendinitis and dislocation, with residual pain and limitation of motion (left ankle disability). 3. Entitlement to an extraschedular rating for lumbar spine disability. 4. Entitlement to an extraschedular rating for left ankle disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2007 to March 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veteran's Affairs (VA) Regional Offices (RO). In a November 2011 rating decision, the RO in San Diego, California, granted entitlement to service connection for left ankle disability and assigned a 10 percent rating effective March 15, 2011, the day after separation from service. In that decision, the RO also granted entitlement to service connection for lumbar spine disability and assigned a 20 percent rating, also effective March 15, 2011. Jurisdiction was subsequently transferred to the RO in St, Louis, Missouri. In December 2011, the Veteran filed his claim for a higher rating for his back disability, which was denied in a June 2012 rating decision. The Veteran timely appealed the initial rating assigned for the left ankle disability, as well as the denial of a rating higher than 20 percent for the lumbar spine disability. The criteria for rating diseases of the spine require that any neurologic disabilities associated with the spine disability be rated separately. See 38 C.F.R. § 4.71a (2015), Diagnostic Codes (DCs) 5235-5243, Note (1). The issue of entitlement to separate ratings for radiculopathy associated with lumbar spine disability was adjudicated by the agency of original jurisdiction (AOJ) in a July 2014 rating decision, in which the RO granted service connection for left lower extremity associated with lumbar spine disability and assigned a 10 percent rating effective March 15, 2011. As the Veteran has not expressed disagreement with the determination, the Board will not consider this disability herein. The issues on appeal have been expanded to reflect different dispositions of the claims for a higher schedular ratings, extraschedular ratings, and TDIU as indicated below. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). The issues of entitlement to an extraschedular rating for lumbar spine disability, extraschedular rating for left ankle disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Throughout the appeal period, symptoms of the Veteran's lumbar spine disability have most nearly approximated forward flexion to 30 degrees, but there was no ankylosis or incapacitating episodes due to intervertebral disc syndrome. 2. Throughout the appeal period, the Veteran's left ankle disability more nearly approximated a disability manifested by marked limitation of motion; there is no evidence of left ankle ankylosis, ankylosis of the left subastragalar or tarsal joint, malunion of the left os calcis or astragalus, or evidence that the Veteran had a left astragalectomy. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 40 percent, but no higher, for lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5237-5243 (2015). 2. Resolving reasonable doubt favor of the Veteran, the criteria for an initial rating of 20 percent, but no higher, for left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the left ankle disability, the Veteran's claim arises from disagreement with the initial disability rating assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, and additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the claim for an increased rating for lumbar spine disability, the AOJ's April 2012 letter provided fully compliant, pre-adjudicatory notice on this claim. In this letter, the Veteran was advised of the types of evidence needed to substantiate his increased rating claim, which included describing his symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by his disability. Additionally, the Veteran was advised of the respective duties upon himself and VA in obtaining evidence to substantiate the claim as well as the criteria for establishing a disability rating, and an effective date of award. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as post-service VA treatment records and adequate VA examination reports, as discussed in detail below. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for increased rating for already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Claim for higher schedular rating for lumbar spine disability The Veteran's lumbar spine disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5237-5243, applicable to lumbar strain and intervertebral disc syndrome (IVDS). All spine disabilities other than IVDS are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, the only higher schedular rating available under the formula for rating IVDS based on incapacitating episodes is a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. On April 2011 VA examination, the Veteran reported that he experienced a couple flare-ups of back pain per year lasting for about three to four months. The Veteran reported that the flare-ups could be triggered by walking more than a mile or standing more than 90 minutes, prolonged sitting, by quick position changes such as when getting up from a chair, and from heavy lifting. Range of motion testing was flexion to 90 degrees with no complaint of pain. There was no additional limitation of range of motion due to pain, weakness, stiffness or fatigability on repetitive testing. There was no ankylosis of the thoracolumbar spine noted. A February 2012 VA treatment record notes that the Veteran could probably work in positions involving limited lifting. A March 2012 treatment record notes that the Veteran had limited flexion of the thoracolumbar spine. On the June 2012 VA examination, the Veteran reported that during flare-ups, he experienced more trouble with bending and with walking. Range of motion was flexion to 55 degrees with objective evidence of painful motion beginning at 40 degrees. There was an additional limitation of motion observed at 50 degrees following repetitive use testing. The examiner noted functional loss and/or functional impairment of the thoracolumbar spine after repetitive motion testing, consisting of less movement than normal and pain on movement. There were no bowel or bladder problems noted. There were no incapacitating episodes over the 12 months due to IVDS or ankylosis of the thoracolumbar spine noted. VA treatment records through June 2014 reflect that the Veteran complained of low back pain with increased pain triggered by prolonged walking. The Veteran has consistently reported that he experiences increased pain and difficulty with bending during flare-ups. Although range of motion testing conducted in the April 2011 and June 2012 VA examinations did not reflect flexion of the thoracolumbar spine limited to 30 degrees or less, the June 2012 VA examination revealed that flexion was limited to 50 degrees following repetitive-use testing and that pain began at 40 degrees. However, the range of motion testing conducted at the examinations do not reflect the Veteran's limitation of motion during flare-ups, as the Veteran credibly reported, thus, the evidence is at least evenly balanced as to whether the symptoms of the Veteran's back disability more nearly approximate flexion limited to 30 degrees or less. As applicable law requires that the reasonable doubt created by this approximate balance in the evidence be resolved in favor of the Veteran, entitlement to a rating of 40 percent is warranted for the lumbar spine disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. However, neither the VA reports of examination or treatment indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Board has awarded the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In addition, the Veteran does not contend, and the evidence does not reflect, that he has suffered from incapacitating episodes due to IVDS. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent, the benefit of the doubt doctrine is not for application and the claim for a rating higher than that assigned herein must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. B. Claim for initial higher schedular rating for left ankle disability The Veteran's left ankle disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5271, applicable to limited motion of the ankle. Under this diagnostic code, a moderate limitation of ankle motion warrants a 10 percent rating and a marked limitation warrants a 20 percent rating, the maximum schedular rating. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. At the April 2011 VA examination, the Veteran reported that following his left ankle surgery, he continued to experience constant pain over the lateral surface of the left ankle with swelling. He indicated that the pain worsened by climbing up or walking down steps and by walking any distance. He further stated that he could not walk longer than a mile or stand for longer than ninety-minutes and that he experienced loss in range of motion. He denied popping, grinding, dislocation or any recent locking episodes of the ankle. He also denied redness of the ankle, but reported increased warmth at times with swelling. He reported that he wears high-top tennis shoes to provide ankle support. He described pain with weight bearing and indicated that his daily activities are limited, including his ability to run or walk for longer periods or playing sports that require pivoting. Physical examination of the left ankle revealed mild effusion over the lateral surface, as well as tenderness to palpation over the lateral malleolus. There was inframalleolar soft tissue swelling. There was no palpable subluxation of the peroneal tendons. There was no talar dome tenderness of the left ankle with the foot in full plantar flexion. There was no deviation of the os calcis in relationship to the long axis of the tibia and fibula of the left ankle. There was no instability of the left ankle on drawer testing. Range of motion of the left ankle was slightly limited with dorsiflexion to 10 degrees and plantar flexion was full to 45 degrees. Dorsiflexion was limited due to complaints of ankle pain, as well as stiffness, with pain being the main limiting factor. There was normal inversion of the left ankle against resistance, but he complained of significant pain and had weakness and was unable to evert the ankle against resistance. There was no evidence of further limitation of motion due to pain, weakness, stiffness, or fatigability on repetitive testing. A June 2012 VA treatment record reflects that the Veteran sought treatment for ankle pain and swelling lasting for about a week. The examiner observed slight erythema and swelling in the left calf to ankle. An x-ray conducted at that time reflects soft tissue swelling with no other abnormalities. Given that the Veteran has consistently reported flare-ups including increased pain and swelling resulting in limitation in walking or weight bearing, the Board finds that the evidence is at least evenly balanced as to whether limitation was moderate or marked. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the symptoms more nearly approximate marked limited motion of the ankle under DC 5271. An initial rating of 20 percent for left ankle disability is therefore warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. As the Veteran is receiving the maximum schedular rating under this diagnostic code, a higher rating is not possible and further discussion in this regard is unnecessary. The Board, however, has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The only higher ratings available under the diagnostic codes applicable to the ankle are the 30 and 40 percent ratings under DC 5270 for ankylosis of the ankle. There are also 20 percent ratings warranted for ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy. Neither the lay statements nor evidence, however, reflects that the Veteran has these or analogous symptoms. The April 2011 VA examination reports and June 2012 treatment records did not note ankylosis. Moreover, the x-ray conducted in June 2012 did not show malunion of os calcis or astragalus or astragalectomy. The evidence, thus, reflects no ankylosis or other symptoms warranting an initial rating higher than 20 percent under any potentially applicable diagnostic code. ORDER A rating of 40 percent, but no higher, for lumbar spine disability, is granted, subject to controlling regulations governing the payment of monetary awards. An initial rating of 20 percent, but no higher, for left ankle disability, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND The Veteran filed a formal claim for entitlement to a TDIU in June 2014 and the RO denied this claim in December 2014. Although no notice of disagreement appears to have yet been filed in response to this decision, the issue of entitlement to a TDIU is deemed to have been submitted as part of any increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The June 2013 VA examiner concluded that the Veteran's lumbar spine disability impacts his ability to work, as repetitive bending, stooping, prolonged standing and walking, and heavy-lifting would be difficult. Similarly, an April 2012 VA treatment record notes that the Veteran could probably do some work that involved limited lifting. Regarding the Veteran's left ankle disability, during the April 2011 VA examination, the Veteran reported that his left ankle pain worsened by climbing up or walking down steps and by walking any distance. He further stated that he could not walk longer than a mile or stand for longer than ninety-minutes with loss in range of motion. Thus, there is some evidence of unemployability due to the lumbar spine and left ankle disabilities and the issue of entitlement to a TDIU has, therefore, been raised. In its December 2014 rating decision, the RO indicated that the Veteran did not meet the schedular standards because he did not have a disability rated 40 percent. See 38 C.F.R. § 4.16(a) (2015). As the Board has granted an increased, 40 percent rating for the lumbar spine disability in the decision above, the Veteran now meets the schedular standards and this issue should again be adjudicated by the AOJ in light of this new rating and finding as to the severity of the Veteran's lumbar spine and left ankle disabilities. Additionally, the Board notes that in exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1) provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria. Under the regulation, an extraschedular disability rating is warranted 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 as to render impractical the application of the regular schedular standards." If exceptional circumstances are found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation. See id. Here, as reflected in lay statements, VA treatment records, and his October 2014 informal presentation hearing, the Veteran has indicated that his lumbar spine and ankle disabilities cause symptoms other than those listed in the relevant criteria. Specifically, additional symptoms of the lumbar spine disability not listed in the relevant criteria include difficulty walking, standing, and sitting for prolonged periods, as well as difficulty lifting heavy objects. Regarding symptoms specific to his left ankle disability, additional symptoms reported include swelling, warmth, instability, and difficulty climbing stairs. The Veteran contends that these symptoms result in a negative effect on his employment. Thus, in light of the Veteran's competent and credible lay statements indicating that he experiences symptoms that are not contemplated by the applicable rating criteria and these symptoms cause marked interference with employment, the Board finds that a remand is warranted so that the issue of whether the Veteran is entitled to extraschedular ratings for his lumbar spine disability and left ankle disability, separately, or whether he is entitled to an extraschedular rating with regard to the combined effect of his service-connected disabilities may be considered in the first instance in accordance with Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Accordingly, the case is REMANDED for the following action: 1. Conduct all appropriate development with regard to the issue of entitlement to a TDIU, to include evaluation of all service connected disorders and the functional impairment they cause. 2. Refer the claims for entitlement to extraschedular ratings for left ankle and lumbar spine disabilities, to include consideration of the collective impact of multiple service-connected disabilities, to the Under Secretary for Benefits or the Director of Compensation Service. 3. After considering any additional evidence received and conducting any development deemed appropriate, and after the extraschedular claims have been returned after referral, readjudicate the issues of entitlement to extraschedular rating for lumbar spine disability, extraschedular rating for left ankle disability, and entitlement to a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs