Citation Nr: 1751410	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  16-03 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota


THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for a cervical spine disorder.

2.  Entitlement to service connection for a cervical spine disorder.

3.  Whether new and material evidence has been received to reopen service connection for a headache disorder.

4.  Entitlement to service connection for a headache disorder.

5.  Whether new and material evidence has been received to reopen service connection for a bilateral great toe disorder.

6.  Entitlement to service connection for a bilateral great toe disorder.

7.  Whether new and material evidence has been received to reopen service connection for a left ear injury with ruptured ear drum.

8.  Entitlement to service connection for a left ear injury with ruptured ear drum.

9.  Whether new and material evidence has been received to reopen service connection for a traumatic brain injury (TBI).

10.  Entitlement to service connection for a TBI.

11.  Entitlement to service connection for a right shoulder disorder.

12.  Entitlement to restoration of a 40 percent disability rating (or evaluation) for the service-connected residuals of a back injury mid-dorsal spine, compression fracture L1 and degenerative disc disease (DDD) of the lumbar spine (back disorder), to include the question of propriety of a reduction in the disability rating to 20 percent effective May 9, 2015.

13.  Entitlement to an increased disability rating (or evaluation) for the service-connected back disorder in excess of 40 percent.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Blowers, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, had active service from December 1950 to December 1952.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the RO in St. Paul, Minnesota, which, in pertinent part, reduced the disability rating of the service-connected back disorder from 40 to 20 percent disabling, effected May 9, 2015, denied service connection for a right shoulder disorder, and found no new and material evidence had been received to reopen the remaining issues on appeal.

In the January 2016 substantive appeal, via a VA Form 9, the Veteran requested a videoconference hearing before the Board as to the issues on appeal.  Subsequently, in August 2017, the Board was informed by the Veteran's representative that the Veteran wished to cancel the hearing and to have a decision be rendered by the Board based upon the evidence of record.  As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn.  38 C.F.R. § 20.702(e) (2017).

The instant matter is a Veterans Benefits Management System (VBMS) appeal.  The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017) and 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for a bilateral great toe disorder, a left ear injury with ruptured ear drum, a TBI, and a right shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A September 2006 RO rating decision denied service connection for a left ear injury with ruptured ear drum, finding no nexus to service.  The Veteran did not file a timely notice of disagreement (NOD) following the September 2006 rating decision, and no new and material evidence was received during the one year appeal period following that decision.

2.  New evidence received since the September 2006 RO rating decision relates to an unestablished fact of a potential nexus to service that is necessary to substantiate a claim for service connection for a left ear injury with ruptured ear drum.

3.  A July 2010 RO rating decision denied service connection for a cervical spine disorder, headaches, a bilateral great toe disorder, and a TBI, finding no in-service injuries, events, or diseases.  The Veteran did not file a timely NOD following the July 2010 rating decision, and no new and material evidence was received during the one year appeal period following that decision.

4.  New evidence received since the September 2006 RO rating decision relates to an unestablished fact of an in-service injury that is necessary to substantiate a claim for service connection for a cervical spine disorder, headaches, a bilateral great toe disorder, and/or a TBI.

5.  The Veteran is currently diagnosed with cervical spondylosis.

6.  During service the Veteran's neck was injured in a parachuting accident.

7.  The Veteran experienced "continuous" symptoms of cervical spondylosis since service separation.

8.  The Veteran is currently diagnosed with chronic headaches.

9.  The chronic headaches are proximately due to or the result of the service-connected cervical spondylosis.

10.  At the time of the reduction of the disability rating for the service-connected back disorder from a 40 percent rating to a 20 percent rating, there had been no actual improvement in the back disorder.

11.  For the entire increased rating period on appeal, from March 18, 2015, the service-connected back disorder more nearly approximated painful limitation of motion of the lumbar spine, with flare-ups of pain, resulting in forward flexion of 30 degrees or less, with no unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes.


CONCLUSIONS OF LAW

1.  The September 2006 rating decision denying service connection for a left ear injury with ruptured ear drum became final.  38 U.S.C.A. § 7105 (West 2014); 
38 C.F.R. §§ 20.302, 20.1103 (2017).

2.  Evidence received since the September 2006 rating decision is new and material to reopen service connection for a left ear injury with ruptured ear drum.  
38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

3.  The July 2010 rating decision denying service connection for a cervical spine disorder, headaches, a bilateral great toe disorder, and a TBI became final.  
38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017).

4.  Evidence received since the July 2010 rating decision is new and material to reopen service connection for a cervical spine disorder.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

5.  Evidence received since the July 2010 rating decision is new and material to reopen service connection for a headache disorder.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

6.  Evidence received since the July 2010 rating decision is new and material to reopen service connection for a bilateral great toe disorder.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

7.  Evidence received since the July 2010 rating decision is new and material to reopen service connection for a TBI.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. 
§ 3.156 (2017).

8.  Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for a cervical spine disorder of cervical spondylosis have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017).

9.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for chronic headaches, as secondary to the now service-connected cervical spondylosis, have been met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326 (2017).

10.  Resolving reasonable doubt in the Veteran's favor, the criteria for restoration of a 40 percent disability rating for the service-connected back disorder, effective May 9, 2015, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.105(e), 3.159, 3.344, 4.1, 4.2, 4.3, 4.10, 4.71a, Diagnostic Code 5242 (2017).

11.  For the entire increased rating period on appeal, from March 18, 2015, the criteria for a disability rating in excess of 40 percent for the service-connected back disorder have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper notice from VA must inform the claimant of any information and 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).  This notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Concerning the new and material and service-connection issues on appeal, as the instant decision reopens and either grants or remands the service-connection issues on appeal, no further discussion of VA's duties to notify and assist is necessary at to those issues.  

With regard to the issue of entitlement to restoration of a 40 percent disability rating for the service-connected back disorder (which includes the question of the propriety of the rating reduction), the regulations pertaining to the reduction of ratings for compensation contain their own notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i) (2017).  For this reason, the Board finds that the VCAA notice requirements do not apply to the restoration issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case."); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (stating that "the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellant's rating from 100% to 10% was proper").  Further, as the instant decision grants restoration of a 40 percent disability rating for the back disorder, no further due process and notification discussion is necessary as to the rating restoration issue.

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

As to the issue of an increased disability rating in excess of 40 percent for the service-connected back disorder, in March 2015, the Veteran received VCAA notice which informed of the evidence generally needed to support a claim for an increased disability rating, what actions needed to be undertaken, and how VA would assist in developing the claim.  The notice was issued to the Veteran prior to the June 2015 rating decision from which the instant appeal arises.  Further, the rating issue on appeal was readjudicated in a January 2016 Statement of the Case (SOC); therefore, there was no defect with respect to the timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Regarding the duty to assist in this case, the Veteran was afforded a VA spinal examination in May 2015.  Further, VA has received the report from a March 2016 private spinal examination.  The examination reports are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The record reflects that, taken together, the VA and private examiners reviewed the record, conducted in-person examinations, and rendered the requested opinions.  While Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, in the instant decision the Board restores the 40 percent disability rating for the relevant rating period on appeal.  A 40 percent rating is the maximum schedular disability rating available for limitation of motion of the thoracolumbar spine under the General Rating Formula, to include the functional equivalent of limitation of motion.  38 C.F.R. § 4.71a.  The Veteran does not contend, and the evidence does not show, ankylosis of the thoracolumbar spine or incapacitating episodes.  For these reasons, the Board finds that Correia is inapplicable in the instant case, and no further examination is needed.  

All relevant documentation, including VA and private treatment (medical) records, has been secured and all relevant facts have been developed.  There remains no question as to the substantial completeness of the rating issues on appeal.  
38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a).  Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above.

Reopening Service Connection 

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C.A. § 7105.  However, pursuant to 
38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 
24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)).  If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512.  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Id. at 513.

In order to prevail on the issue of service connection, generally, there must be 
(1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

A September 2006 RO rating decision denied service connection for a left ear injury with ruptured ear drum, finding no nexus to service.  The Veteran did not file a timely NOD following the September 2006 rating decision, and no new and material evidence was received during the one year appeal period following that decision.  Further, a July 2010 RO rating decision denied service connection for a cervical spine disorder, headaches, a bilateral great toe disorder, and a TBI, finding no in-service injuries, events, or diseases.  The Veteran did not file a timely NOD following the July 2010 rating decision, and no new and material evidence was received during the one year appeal period following that decision.  As such, the September 2006 and July 2010 rating decisions became final as to the evidence then of record, and are not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103.

Since the September 2006 and July 2010 rating decisions, VA has received multiple statements from the Veteran, including in the August 2015 NOD, to the effect that the claimed left ear, cervical spine, headache, bilateral great toe, and TBI disorders were all related to an in-service parachuting accident for which the Veteran has already received service connection for a back disorder.  Further, VA received a March 2016 statement from the Veteran's wife advancing that the Veteran had neck and left ear problems since they met in February 1953, just after the Veteran's separation from service.  

Such evidence relates to unestablished facts necessary to substantiate the claim for service connection for a left ear injury with ruptured ear drum, a cervical spine disorder, headaches, a bilateral great toe disorder, and a TBI.  For this reason, the Board finds that the additional evidence is new and material to reopen service connection for a left ear injury with ruptured ear drum, a cervical spine disorder, headaches, a bilateral great toe disorder, and a TBI.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

Service Connection Law and Regulation

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of:  (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson, 12 Vet. App. at 253, citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Cervical spondylosis (as arthritis) is a chronic disease under 38 C.F.R. § 3.309(a).  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1755 (32nd ed. 2012) (spondylosis is another name for degenerative spinal changes due to osteoarthritis).  As such, the presumptive service connection provisions under 
38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue of service connection for a cervical spine disorder.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a).  Walker, 
708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).

Service connection may be granted for disability that is proximately due to or the result of a service-connected disability.  Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his or her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).

Service Connection for a Cervical Spine Disorder

The Veteran asserts that a currently diagnosed cervical spine disorder is related to an in-service parachuting accident.  Initially, the Board finds that the Veteran is currently diagnosed with the cervical spine disorder of cervical spondylosis.  Per a June 2015 VA treatment record, a magnetic resonance imaging (MRI) of the cervical spine showed degenerative changes consistent with cervical spondylosis.

Next, the Board finds that during service the Veteran's neck was injured in a parachuting accident.  Service treatment records reflect that in November 1952 the Veteran's back was injured in a parachuting accident.  Subsequently, the Veteran was granted service connection for a back disorder related to the accident.  Throughout the course of this appeal, including in the August 2015 NOD, the Veteran advanced also injuring the neck in this same parachuting accident.

Per the report of an April 1953 VA back examination, upon hitting the ground during the November 1952 parachute accident the Veteran was knocked unconscious.  As such, it appears that, at the very least, the Veteran injured the head in addition to injuring the back in the accident.  Considering all the evidence of record, the Board finds it more than plausible that the Veteran also injured the neck/cervical spine in the accident, as the cervical spine lies directly between the back and head.  

Finally, having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced "continuous" symptoms since service separation of spondylosis of the cervical spine.  See 38 C.F.R. § 3.303(b).  While the service treatment records do not reflect that the Veteran was diagnosed with, or treated for, a specific neck disorder after the in-service parachuting accident, throughout the course of this appeal, including in an August 2017 Statement in Support of Claim, the Veteran has advanced experiencing neck symptoms since the parachuting accident.

A March 2016 treatment letter from the son of the Veteran's former chiropractor conveys that on or about 1957 the Veteran sought treatment for multiple injuries caused by the November 1952 in-service parachuting accident.  Unfortunately, the medical records were destroyed due to age and it is unclear if the cervical spine was one of the areas treated; however, considering all the other relevant evidence of record, the Board finds it likely that the chiropractor treated the Veteran's cervical spine in addition to the thoracolumbar spine.  Further, per a June 2015 VA treatment record, a VA physician noted that the Veteran was being treated for head and neck pain that started approximately 50 years earlier with a history of parachuting during service.

In March 2016, the Veteran's wife of 63 years sent VA a letter.  Per the letter, the wife had met the Veteran in February 1953, mere months after the Veteran's separation from service.  In the letter, the wife explained that after they met she immediately noticed the Veteran taking large amounts of over the counter pain killers to treat pain in both the back and neck.  The neck pain has continued from the time they met in February 1953 until the present.

The Veteran is currently diagnosed with spondylosis of the cervical spine.  During service the Veteran severely injured the back in a parachuting accident, and the evidence of record supports a finding that the neck was also injured in that accident.  Throughout the course of this appeal the Veteran has advanced having neck/cervical spine disability symptoms since service, and the available medical evidence of record supports the Veteran's lay statements.  Further, the Veteran's wife, who has known the Veteran since just after service separation, has always known the Veteran to have neck pain.  This evidence is sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of a cervical spine disorder since service separation that was later diagnosed as spondylosis of the cervical spine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous joint pain since service).

Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran injured the neck during service and experienced "continuous" symptoms since service separation of spondylosis of the cervical spine.  As such, the criteria for presumptive service connection for spondylosis of the cervical spine under 
38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms have been met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

As service connection is being granted on a presumptive basis based on continuous post-service symptoms under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide.  See 38 U.S.C.A. § 7104 (West 2014).

Finally, the Board notes that the evidence of record indicates that the Veteran may be diagnosed with other cervical spine disorders.  Where a veteran is diagnosed with multiple cervical spine disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities.  See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam).  In this case, the Board is unable to differentiate the symptomatology of the now service-connected cervical spine spondylosis from any other cervical spine disorder.  As such, the Board has attributed all disability symptomatology and functional impairment to the now service-connected cervical spondylosis, and the RO should consider all of the Veteran's cervical spine symptomatology and functional impairment when assigning an initial disability rating.  For these reasons, the Board need not consider whether service connection is also warranted for any other cervical spine disorder.

Service Connection for Headaches

The Veteran has advanced that recurrent headaches are due to either a TBI stemming from the in-service parachute accident or the now service-connected cervical spine disorder.  Initially, the Board notes that the medical evidence of record, including both VA and private treatment records, indicates that the Veteran had been diagnosed with chronic headaches.

After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the currently diagnosed chronic headaches are due to or the result of the now service-connected cervical spondylosis.  Per a June 2015 VA treatment record, a VA physician opined that the Veteran's headaches were caused by the now service-connected cervical spondylosis.

The Board finds that the evidence of record is at least in equipoise on the question of whether the Veteran's currently diagnosed chronic headaches are proximately due to or the result of the now service-connected cervical spondylosis.  In June 2015, a VA physician specifically found that the headaches were due to the now service-connected cervical spondylosis.  As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for chronic headaches as secondary to the now service-connected cervical spondylosis have been met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.   As service connection has been granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide.  See 38 U.S.C.A. § 7104 (West 2014).

Rating Reduction for Back Disorder

In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 
1 Vet. App. 589, 594 (1991). 

The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability.  VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations.  Faust v. West, 13 Vet. App. 342 (2000).  VA is not limited, however, to medical indicators of improvement.  Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment.  Id.  The examination reports on which the reduction are based must be adequate.  See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). 

In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992).  Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well.  Collier v. Derwinski, 2 Vet. App. 247 (1992). 

Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities.  See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination.  See Brown, 5 Vet. App. at 417-18.  Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later.  38 C.F.R. § 3.344(b).  Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath, 1 Vet. App. at 595.  In this case, the 40 percent rating for the service-connected back disorder was in effect for less than five years at the time of the reduction.  Accordingly, the provisions of 38 C.F.R. § 3.344(a) do not apply to this rating.

Under the provisions of 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits.  Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations.  In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). 

In determining whether the reduction was proper in this case, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had actually improved.  Cf. Dofflemyer, 
2 Vet. App. at 281-282.  Such after-the-fact evidence may not be used to justify an improper reduction.

After a review of all the evidence of record, the Board finds that at the time of the reduction of the disability rating for the service-connected back disorder from a 40 percent rating to a 20 percent rating, there had been no actual improvement in the back disorder, and the criteria for restoration of a 40 percent rating for service-connected back disorder, effective May 9, 2015, have been met.

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 decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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 provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the lumbar 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 disability rating is provided for forward flexion of the lumbar spine 30 degrees or less, or favorable ankylosis of the entire lumbar spine, while a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine.  Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

In a March 2012 rating decision, the RO granted an increased disability rating of 40 percent for the service-connected back disorder based on limitation of forward flexion of the thoracolumbar spine to 30 degrees or less.  This decision was based upon the range of motion testing results of a January 2012 VA spinal examination, which also reported that the Veteran experienced flare-ups of pain that further limited function.

In March 2015, the Veteran filed a claim for an increased disability rating for the service-connected back disorder, advancing that the symptoms of the back disorder had worsened.  Subsequently, the Veteran received a new VA back examination in May 2015.  While range of motion testing showed painful limitation of flexion to only 60 degrees, the VA examiner also noted in the examination report that the Veteran experienced flare-ups of pain.  Unfortunately, the VA examiner did not offer an opinion as to any additional loss of motion during such a painful flare-up.

Based upon May 2015 VA spinal examination, in a June 2015 rating decision, the RO reduced the disability rating of the service-connected back disorder from 40 percent to 20 percent disabling.  In rendering the decision, the RO did not address any additional loss of flexion due to flare-ups of pain.

Subsequently, VA received the report from a March 2016 private spinal examination.  Per the private examination report, upon range of motion testing the Veteran's forward flexion was limited to 20 degrees.  It appears to the Board that this examination was conducted during a flare-up of pain.  As such, the March 2016 private spinal examination supports a finding that, had the May 2015 VA spinal examination been conducted during a painful flare-up, the Veteran's forward flexion would have been limited to 30 degrees or less.

The Board has reviewed the evidence of record, lay and medical, and finds that the June 2015 reduction of the 40 percent disability rating for the service-connected back disorder to 20 percent disabling was not proper.  As discussed above, per a January 2012 VA spinal examination, the Veteran's forward flexion was limited to 30 degrees or less.  The report from a March 2016 private spinal examination also reflects that the Veteran's forward flexion was limited to 30 degrees or less.  Such evidence supports a finding that there was no actual improvement in the Veteran's service-connected back disorder during the relevant period on appeal.  While a May 2015 VA back examination report did note that the Veteran had forward flexion in excess of 30 degrees, as the VA examiner failed to opine as to the additional loss of range of motion during a painful flare-up, it cannot be said that such examination report affirmatively shows actual improvement in the Veteran's service-connected back disorder, particularly when considered with all the other evidence of record.  For these reasons, the Board finds that the reduction of the disability rating for the service-connected back disorder below 40 percent disabling was not proper, and the 40 percent disability rating is to be restored effective May 9, 2015.

Higher Initial Rating for Back Disorder

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  
38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two disability 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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 
38 C.F.R. § 4.25 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

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, 8 Vet. App. 202.  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57.  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr, 21 Vet. App. 303.

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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 provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the lumbar 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 disability rating is provided for forward flexion of the lumbar spine 30 degrees or less, or favorable ankylosis of the entire lumbar spine, while a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine.  Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a. 

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range-of-motion of the lumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion.

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

The diagnostic codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability;
5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome.

The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a.

Having reviewed all the evidence of record, the Board finds that, for the entire increased rating period on appeal, from March 18, 2015, the service-connected back disorder more nearly approximated painful limitation of motion of the lumbar spine, with flare-ups of pain, resulting in forward flexion of 30 degrees or less, with no unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes.

For all the reasons discussed above, the Board has already found that the evidence of record reflects that the Veteran's painful forward flexion is limited to 30 degrees or less, which warranted the restoration of a 40 percent disability rating for the entire relevant period on appeal.  As such, the only remaining question before the Board is whether the Veteran had unfavorable ankylosis of the spine and/or incapacitating episodes having a total duration of at least six weeks during the past 12 months, to warrant a disability rating in excess of 40 percent.

The report from the May 2015 VA spinal examination reflects that the Veteran was not diagnosed with ankylosis of the thoracolumbar spine.  Further, a diagnosis of IVDS was not rendered, and the Veteran did not report having any incapacitating episodes over the previous 12 months.  Per the report of the subsequent March 2016 private spinal examination, the private examiner also did not find that the Veteran had ankylosis of the spine, IVDS, or any incapacitating episodes over the previous 12 months.  Further, review of the Veteran's VA treatment records do not reflect a diagnosis of ankylosis of the spine, IVDS, or any incapacitating episodes over the previous 12 months, and the Veteran has not advanced having symptoms of, or being diagnosed with, ankylosis of the spine, IVDS, or any incapacitating episodes over the previous 12 months.

After a review of all the evidence, lay and medical, the Board finds that, for the entire increased rating period on appeal, a disability rating in excess of 40 percent is not warranted for the service-connected back disorder.  Specifically, the evidence reflects that, for the entire increased rating period on appeal, from March 18, 2015, the service-connected back disorder more nearly approximated painful limitation of motion of the lumbar spine, with flare-ups of pain, resulting in forward flexion of 30 degrees or less, with no unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes.  As discussed above, a disability rating in excess of 40 percent is not warranted unless there is unfavorable ankylosis of the spine or incapacitating episodes; therefore, because the preponderance of the evidence is against a disability rating in excess of 40 percent for the service-connected back disorder, the increased disability rating claim must be denied.  38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242.

Finally, the Board has also considered whether the Veteran is entitled to a separate compensable disability rating for any objective neurologic, or other, disabilities related to the service-connected back disorder.  The Board notes that the Veteran is already service connected for radiculopathy of both lower extremities related to the service-connected back disorder.  Review of the VA and private spinal examinations, along with all the other lay and medical evidence of record, conveys that the Veteran has not been diagnosed with any other neurologic or other disabilities related to the service-connected back disorder.  As such, no separate compensable disability rating is warranted for any additional disability related to the service-connected back disorder.

Extraschedular Consideration

The Board had also considered whether an extraschedular rating is warranted for the service-connected back disorder.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities.  The governing norm in these exceptional cases is:  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.  38 C.F.R. 
§ 3.321(b)(1).
 
The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun v. Peake, 22 Vet App 111 (2008).  However, the Board gives no deference to the Director's adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted.  See Kuppamala v. McDonald, 
27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. 
§ 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. 
§ 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board).

With respect to the first prong of Thun, the Veteran's back disorder manifested primarily as painful limitation of motion with flare-ups, abnormal gait, weakness, incoordination, excess fatigability, difficulty walking, standing, and sitting, and the need to use assistive devices for ambulation.  As discussed above, painful limitation of motion with painful flare-ups, abnormal gait, weakness, incoordination, and excess fatigability are specifically considered under the schedular rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 (additional limitation of motion due to orthopedic factors are incorporated as part of the schedular rating criteria).  

Further, any functional limitations imposed by the Veteran's back disorder are primarily the result of the back pain, including flare-ups, caused by engaging in these activities; therefore, consistent with DeLuca, the effects of the Veteran's back pain and associated limitations on occupational and daily life are specifically contemplated by the schedular criteria.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2017).  In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the functional limitations and the effects on daily life.

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.

Comparing the Veteran's disability level and symptomatology of the back disorder to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule; therefore, the assigned ratings are adequate.  Absent any exceptional factors associated with the back/thoracolumbar spine, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  During the course of this appeal the Veteran has not advanced, and the evidence of record does not reflect, that he is unable to obtain or maintain substantially gainful employment as a result of the service-connected disabilities; therefore, the issue of entitlement to a TDIU has not been raised either by the Veteran or the evidence of record, so the issue does not need to be considered or discussed.  Id.


ORDER

New and material evidence having been received, the claim for service connection for a left ear injury with ruptured ear drum is reopened.

New and material evidence having been received, the claim for service connection for a cervical spine disorder is reopened.

New and material evidence having been received, the claim for service connection for a headache disorder is reopened.

New and material evidence having been received, the claim for service connection for a bilateral great toe disorder is reopened.

New and material evidence having been received, the claim for service connection for a TBI is reopened.

Service connection for a cervical spine disorder of cervical spondylosis is granted.

Service connection for chronic headaches, as secondary to the service-connected cervical spondylosis, is granted.

Restoration of a 40 percent disability rating for the service-connected back disorder, effective May 9, 2015, is granted.

An increased disability rating in excess of 40 percent for the service-connected back disorder is denied.


REMAND

Service Connection for Right Shoulder Disorder, Bilateral Great Toe Disorder, a Left Ear Injury with Ruptured Ear Drum, and a TBI

VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is 
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but 
(4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

The Veteran has not received VA shoulder, toe, ear, and/or TBI examinations in the instant matter.  During the course of this appeal the Veteran has consistently advanced having one or more of the aforementioned disorders, and that the disorders were caused by the previously discussed in-service parachuting accident.  As such, the Board finds remand to schedule appropriate VA examinations to assist in determining what, if any, currently diagnosed disorders the Veteran has, and whether any such disorders are related to the in-service parachuting accident.

Additionally, VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issue.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record.  Further, the AOJ should obtain any outstanding VA treatment records for the period from June 2015.

Accordingly, the issues of service connection for a bilateral great toe disorder, a left ear injury with ruptured ear drum, a TBI, and a right shoulder disorder are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Contact the Veteran and request information as to any private toe, left ear, right shoulder, and/or TBI treatment received during the relevant period on appeal.  Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the Veteran's relevant disorders, not already of record, for incorporation into the record.  If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. 
§ 3.159(e) (2017).

2.  Associate with the record all VA treatment records pertaining to the treatment of the Veteran's toes, left ear, right shoulder, and TBI residuals, not already of record, for the period from June 2015.

3.  Schedule the appropriate VA examinations.  The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination.  A detailed history of relevant symptoms should be obtained from the Veteran.  All indicated studies should be performed.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  The examiners should provide the following opinions:

Bilateral Great Toes

A)  Does the Veteran have a currently diagnosed bilateral toe disorder?

B)  If the Veteran does have a currently diagnosed bilateral toe disorder, is it at least as likely as not (50 percent or higher degree of probability) that the bilateral toe disorder had its onset during a period of active service, including as due to the in-service parachuting accident?

Left Ear

A)  Does the Veteran have a currently diagnosed left ear disorder (or residuals thereof), other than hearing loss, to include a ruptured ear drum?

B)  If the Veteran does have a currently diagnosed left ear disorder, other than hearing loss, is it at least as likely as not (50 percent or higher degree of probability) that the left ear disorder (or residuals thereof) had its onset during a period of active service, including as due to the in-service parachuting accident?

Right Shoulder

A)  Does the Veteran have a currently diagnosed right shoulder disorder, to include a rotator cuff injury?

B)  If the Veteran does have a currently diagnosed right shoulder disorder, is it at least as likely as not (50 percent or higher degree of probability) that the right shoulder disorder had its onset during a period of active service, including as due to the in-service parachuting accident?

TBI

A)  Does the Veteran have residuals of a TBI?

B)  If the Veteran does have residuals of a TBI, is it at least as likely as not (50 percent or higher degree of probability) that the TBI residuals had their onset during a period of active service, including as due to the in-service parachuting accident?

4.  Then, readjudicate the issues of service connection for a bilateral great toe disorder, a left ear injury with ruptured ear drum, a TBI, and a right shoulder disorder.  If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned 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).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs