Citation Nr: 1804220 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 06-24 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left leg disability, claimed as vascular or radicular in nature. 2. Entitlement to a rating in excess of 20 percent for a low back disability from February 28, 2008 to July 2, 2010. 3. Entitlement to a rating in excess of 40 percent for a low back disability from July 2, 2010 to the present. 4. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1969 to November 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2004 and April 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The April 2004 rating decision denied entitlement to service connection for a bilateral leg disability. The Veteran initially claimed that the condition was radicular in nature, related to his low back disability. He later raised the possibility that his bilateral leg pain was related to a vascular condition which may be service-connected. The issue has been re-characterized as shown on the title page to reflect these theories of entitlement and the evidence of record. In April 2006, the RO implemented a March 2006 Board decision granting service connection for a low back disability; the RO assigned a 10 percent evaluation effective from the date of receipt of the original claim. Within a year of the decision, the Veteran submitted new evidence, a copy of a May 2006 MRI of his low back. This evidence has been characterized as a Notice of Disagreement (NOD) with the initial evaluation of the Veteran's low back disability; therefore, the appeal for a low back disability dates back to the April 2006 decision. Later, in February 2008, the Veteran filed for an increase in the evaluation for his low back disability. In a June 2008 rating decision, the RO increased the rating to 20 percent, effective February 28, 2008. The Veteran timely filed an NOD, requesting a greater evaluation. The RO increased the Veteran's evaluation for his low back disability to 40 percent, effective July 2, 2010. Although the RO has granted a higher disability rating for the Veteran's low back disability, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). In a December 2011 decision, the Board denied an evaluation in excess of 10 percent prior to February 28, 2008 and remanded the remaining issues on appeal for further development, to include new VA examinations. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for right leg radiculopathy was granted in an April 2017 rating decision, and accordingly, is no longer on appeal. The Veteran has asserted in the context of his claims for increased evaluations that he is now unemployable. A claim for TDIU is part of all claims for increase where there is evidence of unemployment. Rice v. Shinseki, 22 Vet. App. 447 (2009). The inferred claim is therefore on appeal. In March 2010, the Veteran testified at a travel board hearing before a Veterans Law Judge who is no longer with the Board. A copy of the transcript has been associated with the claims file. In June 2017 correspondence, the Veteran was given the opportunity to request another hearing. The Veteran indicated that he did not want another hearing, and the Board will therefore proceed. The issues of entitlement to a rating in excess of 40 percent from July 2, 2010 to the present and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed left leg disability. 2. For the period from February 28, 2008 to July 2, 2010, the Veteran's low back disability was not manifested by ankylosis or limitation of flexion to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 2. The criteria for a rating in excess of 20 percent for a low back disability are not met or approximated from February 28, 2008 to July 2, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Left Leg Disability The Veteran maintains that he has a left leg disability that should be service-connected. In his original claim, the Veteran stated that he was injured during service while loading a metal box into an aircraft. He reported that the weight of the metal box pulled him forward, hurting his back, legs, and arm. He reported being unable to walk for an hour. He noted that he has had worsening back, arm, and leg pain since that time. See December 2003 Statement in Support of Claim. Later, the Veteran stated that his leg pain was possibly radicular, related to his low back disability, and noted vascular changes that could also be the cause of the leg disability. See September 2006 Decision Review Officer (DRO) Hearing and VA Treatment Records. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Additionally, 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) (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a) (2017). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board finds that service connection for a left leg disability is not warranted on a direct or secondary basis. The first element required for a direct or secondary service connection claim is a current diagnosis. At his most recent VA examination, the examiner found right L5-S1 radiculopathy and incomplete paralysis of the sciatic nerve on the right side; however, no diagnosis was rendered for a left lower extremity disability and the Veteran's sciatic nerve on the left side was assessed as normal. Additionally, the examiner found no evidence of current vascular impairment of either lower extremity. See January 2012 VA Examination. Moreover, none of the Veteran's VA or private treatment records reflect a diagnosis of a left leg disability. The Board acknowledges that the Veteran experiences left leg pain. However, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) aff'd 259 F.3d 1356 (Fed. Cir. 2001) (affirming on other grounds without addressing pain alone). As leg pain is not a disability, it cannot by itself be service-connected. In the absence of a present disability, there can be no valid claim. Accordingly, entitlement to service connection for a left leg disability is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Begmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir.1997). Increased Rating for a Low Back Disability from February 28, 2008 to July 2, 2010 The Veteran seeks entitlement to a rating in excess of 20 percent for his low back disability for the period from February 28, 2008 to July 2, 2010. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; 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. 38 C.F.R. § 4.71a, General Rating Formula (2017). A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. Normal range of motion of the thoracolumbar spine is forward flexion to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right rotation. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 4.71, Plate V (2017). If intervertebral disc syndrome (IVDS) is present, a lumbosacral spine disability may also be rated under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined. Id.; see also 38 C.F.R. § 4.25 (2017). The Formula for Rating IVDS provides a 10 percent disability rating with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months; a 20 percent disability rating with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months; a 40 percent disability rating with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months; and a 60 percent disability rating with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS (2017). Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran's low back disability has been rated under Diagnostic Code 5237 for low back strain. As an initial matter, the Board notes that a lumbar spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the Spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Here, the evidence does show a diagnosis of Intervertebral Disc Syndrome (IVDS); however, the record does not reflect any incapacitating episodes requiring physician prescribed bedrest. As such, Diagnostic Code 5243 is not for application in the instant appeal. The Veteran was provided a VA examination in March 2008. There he reported back pain from an injury in service that has continued to worsen. He stated that he takes medication for the pain that occasionally helps, but other times does not, depending on the severity of the pain. He reported weakness in his lower back after walking. At that time, he ambulated without the assistance of a cane, walker, or crutches, but stated that he had about three falls due to being unsteady. He noted that he called out of work about 30 days in the past year due to pain; however, it is noted that this was not identified as physician-ordered. He observed that he is unable to do as much as he once could. For example, he could at one time buy a 90-pound bag of salt for his home, but now can only buy a 40-pound bag. He could still do yard work, but noticed that he would be sore afterwards. Upon physical examination, the Veteran's gait was normal. There were no obvious deformities of the thoracolumbar spine; it was non-tender to palpation. There were paravertebral spasms. Forward flexion was to 60 degrees; extension was to 15 degrees; left lateral flexion was to 20 degrees; right lateral flexion was to 20 degrees; left lateral rotation was to 20 degrees; and, right lateral rotation was to 20 degrees. The Veteran was able to complete repetitive movements with complaints of increased pain; however, there were no complaints of weakness, incoordination, or fatigue. Radiographic testing was performed. The examiner diagnosed the Veteran with degenerative arthritis and disc disease at L5-S1. This examination was the basis for the assignment of the 20 percent evaluation. Another VA examination was provided in September 2009. The Veteran again reported pain and stiffness in his lower back and stated that he took medication for the pain. He indicated that he experienced flare-ups of hard throbbing pain across his back that was very severe. He noted that when he uses medication, the flare-up pain becomes moderate. At that time, he reported using a cane or a walker when walking long distances. Upon physical examination, the Veteran's gait was abnormal, characterized by a limp right leg. His posture was antalgic and the symmetry and rhythm of the Veteran's spinal motion was abnormal, slow and rackety. No ankylosis of the thoracolumbar spine was found. Initial range of motion measurements were as follows: forward flexion to 50 degrees; extension to 15 degrees; left lateral flexion to 20 degrees; right lateral flexion to 20 degrees; left lateral rotation to 22 degrees; and right lateral rotation to 22 degrees. Range of motion testing was performed again and the results were identical. Pain, fatigue, weakness, lack of endurance, incoordination, muscle spasm, weakness, and tenderness were observed. The examiner diagnosed lumbar spine spondylosis with degenerative arthritis and lumbar spine IVDS with saphenous vein involvement. Based on the evidence above, the Board finds that a disability rating in excess of 20 percent from February 28, 2008 to July 2, 2010 is not warranted. For a rating in excess of 20 percent, the record must show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. During the subject period, from February 28, 2008 to July 2, 2010, the Veteran's forward flexion was, at most, limited to 50 degrees. Regarding neurological impairment related to the Veteran's lumbar spine disability, the Board has considered the Veteran's reports of neurological symptoms related to his low back disability. However, as noted previously, there is no objective evidence of a left leg radiculopathy associated with the Veteran's lumbar spine disability, and the Veteran is already being separately compensated for his right leg radiculopathy. Therefore, separate ratings for neurological manifestations of the Veteran's lumbar spine disability are not warranted at this time. The Board has also considered the Veteran's lay statements regarding the functional impact of his service-connected low back disability. The Veteran is competent to report his own observations with regard to the severity of his low back disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has reported complaints of pain, weakness, stiffness, numbness, unsteadiness, fatigue, decreased motion, and spasms. These statements are credible and consistent with the rating assigned for the period under consideration. The occurrence of lumbar pain while performing such activities is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on examination, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained healthcare professionals are of greater probative weight than the Veteran's more general lay assertions. The evidence of record indicates that the Veteran's claimed symptoms, to the extent that they limit his range of motion, were contemplated by the 20 percent rating for painful or limited motion and did not show that the Veteran's limited motion was so functionally limited to forward flexion limited to 30. As noted above, repetitive motion testing did not cause additional limitation of motion. The Board acknowledges that the Veteran's pain increased with repetitive motion testing. However, the Court has held that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40 (2017). In the instant case, the evidence of record does not support a finding that the Veteran's back pain affects the normal working movements of the body. The Board acknowledges that, along with pain, the Veteran experiences weakness, fatigue, and unsteadiness, but finds that these symptoms do not rise to level of affecting the normal working movements of the body so as to constitute functional loss warranting a rating in excess of 20 percent, because the Veteran has exhibited the strength, coordination, and endurance to conduct his daily activities. Additionally, the evidence of record demonstrates that the Veteran's low back disability was not productive of ankylosis during the applicable period. For these reasons, the evidence is against a finding that the Veteran's low back disability warrants a rating in excess of 20 percent under the disability rating schedule for the period from February 28, 2008 to July 2, 2010. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2017); DeLuca, 8 Vet. App. at 206-7. ORDER Entitlement to service connection for a left leg disability, claimed as vascular or radicular in nature, is denied. Entitlement to a rating in excess of 20 percent for a low back disability from February 28, 2008 to July 2, 2010 is denied. REMAND Unfortunately, a remand is required for the remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. The Veteran seeks entitlement to a rating in excess in 40 percent for a low back disability from July 2, 2010 to the present. He avers that the 40 percent evaluation does not adequately reflect the severity of his disability, which he states is characterized by debilitating flare-ups. See Appellant's August 2017 Post-Remand Brief. The record reflects that the Veteran last underwent a VA examination to assess the severity of his low back disability in July 2010. Because the July 2010 VA examination is unduly remote and may not reflect the current severity of the Veteran's service-connected low back disability, a new VA examination is warranted. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326 (a) (2017). The new examination could potentially result in the assignment of a higher disability rating for the Veteran's low back disability and could demonstrate additional functional limitations not already on record. This could possibly result in eligibility for TDIU, and thus the matters are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a new VA examination to determine the current severity of his service-connected low back disability. The Veteran's claims file and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. The examiner must determine the range of motion of the Veteran's thoracolumbar spine, in degrees, noting by comparison the normal range of motion of the thoracolumbar spine. The VA examiner must specifically state whether there is any favorable or unfavorable ankylosis in the thoracolumbar spine. The examiner must also state whether there is weakened movement, excess fatigability, incoordination, or other functional impairment attributable to the service-connected low back disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any such findings. Finally, an opinion must be stated as to whether any pain found in the thoracolumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected low back disability. If necessary to evaluate the complaints, nerve conduction studies and/or electromyography studies must be conducted. The specific nerve(s) involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. Any neurologic abnormalities associated with the Veteran's low back disability must be reported. The examiner must also state whether the Veteran's intervertebral disc syndrome (IVDS), diagnosed in September 2009 results in incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician, and note the frequency and total duration of such episodes over the course of the past 12 months. Finally, the examiner must describe functional limitations resulting from the Veteran's low back disability. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 3. When the above development has been completed, re-adjudicate the issues on appeal, including entitlement to a TDIU, with consideration of all evidence in the claims file. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and afford the Veteran an adequate opportunity to respond, prior to returning the issue to the Board for appellate review. 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. §§ 5109B, 7112 (2012). ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs