Citation Nr: 1753426 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-33 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to May 12, 2011, and in excess of 10 percent as of September 1, 2011, for a lumbar spine disorder. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1995 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that in May 2011, the Veteran underwent surgery for her lumbar spine disability and associated left lower extremity radiculopathy, and the RO assigned a temporary total evaluation from May 12, 2011 to September 1, 2011. As such, this period is no longer on appeal and is reflected in the title page. Additionally, the Board observes that in her December 2011 substantive appeal, the Veteran withdrew, in part, her increased rating claim for left sciatic peripheral nerve radiculopathy secondary to her lumbar spine disorder. Therefore, while an increased rating claim for a lumbar spine disorder ordinarily includes associated neurological abnormalities, the Board finds that this issue is no longer on appeal. See Tyrues v. Shinseki, 23 Vet.App. 166, 176 (2009). In March 2017, the Board remanded the lumbar spine increased rating claim for further development. The issue of entitlement to service connection for TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT Throughout the period on appeal, the Veteran's back disorder has been characterized by painful limitation of motion; forward flexion of the thoracolumbar spine less than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, revered lordosis, or abnormal kyphosis, have not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent prior to May 12, 2011, and in excess of 10 percent as of September 1, 2011, for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings The Veteran is seeking an increased rating for her service-connected lumbar spine disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar spine disability has been assigned a 10 percent rating prior to May 12, 2011, and as of September 1, 2011, under 38 C.F.R. § 4.71a, DC 5242 (2017). In order to warrant a rating in excess of 10 percent, the evidence must show: * Forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees (20 percent under DC 5241); * A combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); * Muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, revered lordosis, or abnormal kyphosis; * X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a, DC 5242 (2017). Based on the evidence of record, a rating in excess of 10 percent is not warranted for the period on appeal. Specifically, at a VA examination in January 2010, the Veteran reported near constant pain in her back. She exhibited 90 degrees of flexion and her combined range of motion was 150 degrees. No muscle spasms, guarding, or weakness severe enough to cause abnormal gait or spinal contour was observed. Similarly, in a May 2015 VA examination, the Veteran reported worsening and constant back pain. On examination, she exhibited 65 degrees of flexion and her combined range of motion was 150 degrees. There was no evidence of muscle spasms, guarding, or weakness severe enough to cause abnormal gait or spinal contour. Additionally, there was no evidence in the Veteran's treatment records to support a rating in excess of 10 percent. Of note, the Veteran's July 2016 VA treatment records reflect 90 degrees of flexion in her back with no significant limitations in her combined range of motion. Therefore, a rating in excess of 10 percent is not for application. When considering these ratings, the Board has considered the impact of functional loss in the Veteran's back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206-07 (1995). In this case, the Veteran has complained that she is limited in performing activities of daily living due to fatigue, pain, and weakness. Specifically, that her pain limits activities such has her ability to climb stairs, bend, stoop, sit, and lift heavy objects. Moreover, she has indicated that her pain and flare-ups cause additional functional loss. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and her complaints are adequately contemplated in the ratings she currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, the January 2010 and May 2015 VA examiners did not find any additional loss of motion or functioning after flare-ups, repetitive testing, or weight bearing that would warrant a higher rating. Next, when evaluating the extent of the Veteran's lumbar spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). As discussed, the Veteran is already service-connected for left sciatic nerve radiculopathy as secondary to her lumbar spine disorder. Thus, any additional compensation for these symptoms would be pyramiding. 38 C.F.R. § 4.14. Further, with respect to any other neurological abnormalities, the medical evidence does not document any other associated neurological impairments related to her lumbar spine disability. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that her service-connected disorders are worse than the ratings she currently receives, including that her back disorder causes impairment with her activities of daily living. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her service-connected disabilities according to the appropriate diagnostic codes. 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"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's lumbar spine disorder has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Alternatively, the Board notes that the Veteran's claim is also denied because she failed to attend her March 2017 VA examination without good cause. Specifically, when a claimant does not report for an examination in conjunction with a claim for an increased rating of a service connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. 38 C.F.R. § 3.655(a) (2017). Here, neither the Veteran nor her representative submitted any explanation or reason for not attending the VA examination - even after they were notified by the RO that the claim was being denied upon such grounds. Accordingly, the claim for an increased rating must be denied. 38 C.F.R. § 3.655 (2017). The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to the issue on appeal, including back pain that causes limitations to her activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing her of both her and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records Social Security records, and relevant private treatment records have been obtained. The Veteran has also been provided with a VA examination - including as per the Board's March 2017 remand instructions as discussed below. Finally, it is noted that this appeal was remanded by the Board in March 2017 to obtain outstanding records and a new VA examination. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Board has obtained all outstanding VA and private treatment records. Moreover, the Veteran was provided with the opportunity to attend a VA examination in March 2017. However, as discussed, the Veteran failed to appear for her examination without good cause. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 10 percent prior to May 12, 2011, and in excess of 10 percent as of September 1, 2011, for a lumbar spine disorder is denied. REMAND Additionally, the Board notes that the Veteran has asserted, in numerous correspondences and in her medical records, that her service-connected lumbar spine disorder significantly interferences with her ability to maintain substantial gainful employment. Specifically, during the period on appeal, she has gone through periods of unemployment and is currently only able to work a "few hours" at a time due to her lumbar spine disorder. When a veteran submits a claim for an increased rating for a service-connected disability, it is a claim for the highest rating available, to include entitlement to TDIU, if raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, on remand, this issue must be developed and adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's medical records from the VA medical center in Hampton, VA since August 2017, or any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, she should be afforded an appropriate opportunity to submit them. 2. The RO should undertake any other development deemed necessary in order to adjudicate the TDIU claim, including obtaining any VA examinations or opinions that are necessary to adjudicate the claim. 3. After the above action is completed, if the TDIU claim is not fully granted, a supplemental statement of the case should be issued, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs