Citation Nr: 1633510 Decision Date: 08/24/16 Archive Date: 08/31/16 DOCKET NO. 10-08 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the low back prior to November 17, 2014 and in excess of 40 percent after November 17, 2014. 2. Entitlement to service connection for a bilateral hip condition, to include as secondary to the service-connected DDD of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1960 to September 1964. This appeal come before the Board of Veterans' Appeals (Board) from an April 2008 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The Veteran had a Travel Board hearing in June 2012 before the undersigned. A transcript of this proceeding has been included in the claims folder. This case was remanded in June 2014 for further development. A March 2015 rating decision subsequently increased the Veteran's rating for his degenerative joint disease of the low back to 40 percent effective November 17, 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In February 2008, the Veteran's low back DDD was manifested by forward flexion in his thoracolumbar spine of 45 degrees with painful range of motion beginning at 30 degrees. 2. In April 2010, the Veteran's low back DDD was manifested by forward flexion in his thoracolumbar spine of 40 degrees. There was also significant lay evidence of functional loss during flare-ups. 3. From November 2014, , the Veteran has had forward flexion in his thoracolumbar spine of 30 degrees with painful range of motion beginning at 20 degrees. 4. The Veteran does not have a current bilateral hip disability that has been related to his service or to his service-connected low back DDD. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 40 percent, but no more, from January 1, 2008 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.655, 4.1, 4.3, 4.7, 4.71, 4.71a, Diagnostic Code 5243 (2015). 2. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in January 2008 and April 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in February 2008, April 2010 and November 2014. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2015). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected degenerative disc disease of the lumbar spine has been rated 20 percent prior to November 17, 2014 and 40 percent from November 17, 2014 under DC 5243, which is part of the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a. Under this formula, a 10 rating is assigned for forward flexion of the thoracolumbar spine between 60 and 85 degrees or a combined range of motion greater than 120 degrees but not greater than 235 degrees; a 20 rating is assigned for forward flexion of the thoracolumbar spine between 30 and 60 degrees; a 40 rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). Residuals of lumbar strain with degenerative changes may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS (2015). Under the Formula for Rating IVDS, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. At a February 2008 VA examination, the Veteran stated that he had persistent low back pain and was unable to walk for long periods. He stated that his symptoms have become progressively worse and that he takes medication on a daily basis. He was able to handle activities of daily living. The Veteran had forward flexion in his thoracolumbar spine of 45 degrees with painful range of motion beginning at 30 degrees. The pain was worsened with repetitive movement, although flexion remained the same. At an April 2010 VA examination, the Veteran reported worsening back pain that limited his ability to walk more than 30 yards, bend, lift and do yard work. He had a decreased tolerance for standing, walking and climbing stairs. He had had no surgeries or injections. He stated that he had constant, moderate stabbing pain. On examination, he was noted to walk slowly and with a limp. There was some lumbar flattening. He displayed forward flexion of the lumbar spine of 0-40 degrees. The Veteran had a VA examination in November 2014 where he had forward flexion in his thoracolumbar spine of 30 degrees. After repetitive testing, there was no additional limitation of motion. During flare-ups, which occurred weekly, forward flexion would be reduced to 20 degrees. There was, however, no finding of unfavorable ankylosis The examiner indicated that the Veteran had IVDS but no incapacitating episodes within the past 12 months. Therefore, the weight of the evidence is against finding any increased rating based on the Formula for IVDS. A review of the evidence since January 2008 shows that the evidence is at least in equipoise that the Veteran has a disabling condition that warrants a 40 percent rating. However, because there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, an evaluation of 50 percent is not justified. In terms of Deluca and Mitchell, the Veteran reported at his April 2010 VA examination that he had progressively worsening back pain that limited his walking to less than thirty yards. There also were limitations in his postural activities. The Veteran reported severe weekly flare-ups that may cause him to miss work for a day and where his flexion was decreased by 50 percent. The Board also considered the Veteran's letter from his employer that indicated the Veteran's ability to work as a realtor is affected because of the functional loss he has in terms of walking around to inspect and show houses. The Veteran additionally testified at the June 2012 hearing that he has difficulties walking the acreage of a home and has to have someone else put up signs. He also testified he can only walk for a block before resting and can stand for about 15 minutes. In 2014, the Veteran reported weekly flare-ups with decreased tolerance for weight bearing during flare-ups. His lumbar flexion was decreased to 0-20 degrees during flare-ups. The Veteran's forward flexion was 30 degrees and painful range of motion ended at 20 degrees. The Veteran had no additional limitations in range of motion following repetitive use testing. He did have functional loss with less movement than normal, pain on movement, interference with sitting, standing or weight bearing and lack of endurance. There are no additional treatment records or reports of functional loss due to pain since November 2014. Based on this evidence entitlement to an increased rating above 40 percent based on Deluca and Mitchell is not warranted. The Board has also considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as his range of motion and other functional limitations, are "like or similar to" those explicitly listed in the rating criteria. See Mauerhan, 16 Vet. App. at 443. Moreover, he has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the assigned rating. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities, and referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to the service-connected diabetes. Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, record does not raise the issue of special monthly compensation. Akles v. Derwinski, 1 Vet. App. 118 (1991). Therefore, those issues are not part of the rating appeal. Service connection, bilateral hip Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran claims he has a bilateral hip condition as secondary to the service connected degenerative joint disease of the low back. The Veteran had a VA examination in November 2014. The examiner found that the Veteran does not have a current bilateral hip disability. Specifically, the Veteran was found to have grossly normal bilateral hips through examination and x-rays. All findings on ranges of motion, reflexes and other clinical tests were normal. There also is no evidence of a current of chronic left or right hip diagnosis or disability. The examiner considered the Veteran's report of hip pain but indicated it is most likely secondary to a symptom of the Veteran's service-connected radiculopathy to his right lower extremities. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted). Because there is no current hip disability or any indication of a chronic condition of the bilateral hips, secondary service connected must be denied. Moreover, direct service connection must also be denied because element (1) of a current disability is not satisfied. Moreover, the Veteran does not claim nor do the service treatment records show that he had a hip injury of disability in service. As a consequence, entitlement to service connection for a bilateral hip disability is denied. ORDER Entitlement to a 40 percent disability, but no more, for the DDD of the low back, effective January 15, 2008, is granted. Entitlement to service connection for a bilateral hip disability is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs