Citation Nr: 1805394 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-05 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a post traumatic concussion disorder with headaches, memory loss, and decreased vision. 2. Entitlement to an increased compensable rating for excoriation of the arms and legs. 3. Entitlement to an increased rating in excess of 10 percent for lumbar spine strain with degenerative disc disease (DDD). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 2005 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. The claims were brought before the Board in June 2015 and were remanded for further development. FINDINGS OF FACT 1. Since the prior final August 2009 rating decision, the Veteran has not submitted any evidence that is new and material to raise a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for post traumatic concussion disorder with headaches, memory loss, and decreased vision. 2. The evidence of record does not show the Veteran's excoriation of the arms and legs has manifested to at least 5 percent or more of the entire body, or at least 5 percent or more of exposed area affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. 3. For the period prior to December 2, 2010, the evidence of record shows that the Veteran's lumbar spine disability manifested to a forward flexion greater than 60 degrees, but not greater than 85 degrees. 4. The probative evidence of record shows that since December 2, 2010, the Veteran's lumbar spine disability has manifested to a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen service connection for post traumatic concussion disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 2. The criteria for an increased rating in excess of 0 percent for excoriation of the arms and legs have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code (DC) 7806 (2017). 3. The criteria for an increased rating in excess of 10 percent for lumbar spine strain for the period prior to December 2, 2010 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2017). 4. The criteria for an increased rating of 20 percent, but no higher, for lumbar spine strain from December 2, 2010 have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veteran's attorney has asserted in a generic manner that VA has a duty to assist by providing a medical examination that hold an opinion that is "full and adequate" to adjudicate the Veteran's claim. See May 2012 Notice of Disagreement. The Board remanded these claims in June 2015 in part, to afford the Veteran additional VA examinations to address any deficiencies. The VA made numerous attempts to contact the Veteran to schedule her for VA examinations both by mail and by direct telephone contact. The most recent contact by telephone reflects that on July 27, 2017, a representative from the VA medical center contacted the Veteran's fiancé by phone, as this is the phone number that the Veteran provided, and he stated they did receive "the RSVP letter," he "will be home in 30 minutes and will have her [the Veteran] call C&P to schedule examinations." The VA employee noted that he provided a call back number and verified the mailing address as correct. There is no documentation in the file that any contact was received from the Veteran to schedule the VA examinations. Because there are no statements offered by the Veteran or her attorney as to her reasons for failing to respond to requests to schedule the examinations, the Board finds that she has not provided good cause and will therefore decide the claim on the evidence of record. The duty to assist has therefore been satisfied, and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating her claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and due to her failure to attend the scheduled VA examinations, provide dates for which she is able to attend a VA examination or return communication with the VA to schedule VA examinations, there is no further duty to provide any more VA examinations relating to these claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159 (c)(4). The available medical evidence is sufficient for an adequate determination on these issues. Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. I. New and Material Evidence- Post Traumatic Concussion Disorder A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2017). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105 (2012). However, pursuant to 38 U.S.C. § 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 means existing evidence not previously submitted to agency decision makers. Material evidence means 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 (2017). 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 submitted 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, to include by triggering the Secretary's duty to assist. Id. at 118. The Veteran filed her initial claim for post traumatic concussion disorder with headaches, memory loss, and decreased vision in June 2009. The Veteran claimed she suffered a fall in which she hit her head on a bunk while in service. At the time the Veteran's claim was brought to the RO, the Veteran's records showed she had treatment for headaches from an injury. The Veteran was provided an examination in July 2009 and her service treatment records (STRs) were a part of the file at the time. The RO determined in the August 2009 rating, that due to the Veteran not reporting for her MRI or neuropsychological testing to determine the current nature, severity, and etiology of any post-concussion syndrome, there was no evidence of record that the disability had been diagnosed. In the March 2012 rating decision, the RO determined that the evidence submitted since the August 2009 was not new and material and confirmed the previous denial of the claim. After considering the evidence received since the August 2009 rating decision, the Board finds new and material evidence has not been received to reopen the Veteran's service connection claim for post traumatic concussion disorder. Since the August 2009 rating decision, additional VA treatment records, and STRs have been received. The Board finds the evidence since the final rating decision in August 2009 is new, as it was not of the record at the time of the final prior denial; however, it is not material as it does not address an unestablished fact necessary to substantiate the claim. Specifically, none of the new evidence is material because it does not provide competent evidence connecting the Veteran's claimed post traumatic concussion disorder to service. 38 C.F.R. § 3.159(c)(1). The Board notes that the Veteran has not attended any of the examinations the RO has scheduled her for. Following the Board's June 2015 remand, the RO took several steps to comply with the directives and send the Veteran for multiple examinations, however, the Veteran did not attend any of them. The Veteran was sent many notifications and was left voicemails regarding the examinations, all of which went unanswered by the Veteran. The Veteran's VA treatment records since the August 2009 rating decision have been made part of the record; however, none of her visits show treatment for a post traumatic concussion disorder. In light of the foregoing, the Board finds that the additional evidence received since the August 2009 rating is not new and material within the meaning of 38 C.F.R. § 3.156(a). Thus, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). Accordingly, the Board finds that new and material evidence has not been received and the claim for service connection for post traumatic concussion disorder is not to be reopened. Therefore, the appeal must be denied. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for 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); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Excoriation of the Arms and Legs The Veteran's skin condition of the arms and legs is currently rated under Diagnostic Code 7806 for Dermatitis and Eczema. Diagnostic Code 7806 provides a non-compensable rating when less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected, and there was no more than topical therapy required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806. A 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12 month period. Id. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Id. The Veteran's skin condition is currently rated as non-compensable due to her August 2009 VA examination showing only 1 percent of exposed body area was affected and 0 percent of her unexposed area affected. The Board finds that the record is void of any medical records that show the current severity of the Veteran's skin condition. The record does include the Veteran's VA treatment records and although there are occasional mentions of skin issues on the Veteran's arms, there are no descriptions as to the percentage her skin condition affects her body or of any intermittent systemic therapy. Further, the Veteran has not attended any of her scheduled examinations. As mentioned above, following the Board's June 2015 remand, the RO took several steps to comply with the directives and schedule the Veteran for examinations to determine the current severity of her conditions. The Veteran did not attend any of her scheduled examinations and did not respond to any VA correspondences. The Board notes that while VA has a duty to assist the Veteran in developing evidence pertinent to the claim, the Veteran also has a duty to cooperate with the VA in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not a one-way street"). Thus, due to there being no medical evidence showing the current severity of the Veteran's skin condition and the VA exhausting all efforts to provide the Veteran with updated examinations, the Board finds that the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, the Veteran's claim for a compensable rating for excoriation of the arms and legs must be denied. Lumbar Spine Strain The Veteran's service connected back disability is currently rated under Diagnostic Code 5237 for Lumbosacral Strain. Under this diagnostic code, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: General Rating Formula for Diseases and Injuries of the Spine 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: Unfavorable ankylosis of the entire spine..................100 Unfavorable ankylosis of the entire thoracolumbar spine ............................................................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine..........................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine...................................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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..........................................................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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..............................................................10 When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Period Prior to December 2, 2010 Here, the Veteran's lumbar spine disability is currently rated as 10 percent disabling. At her initial VA examination in July 2009, the Veteran had forward flexion of 75 degrees, extension of 25 degrees, right and left lateral flexion of 30 degrees, and right and left rotation of 30 degree. She had some minor stretching sensation of the low spine but no other functional impairment. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for a lumbar spine disability prior to December 2, 2010. There is no evidence of record indicating that the Veteran had forward flexion limited to 60 degrees or less; that he had combined thoracolumbar spine range of motion limited to 120 degrees or less; or that there were muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In fact, the Veteran had demonstrated forward flexion to 75 degrees at her July 2009 VA examination. Further, there is no indication that the Veteran experienced functional impairment in excess of that reported in the VA examination reports during a painful flare-up. The Board further notes that there is no evidence of additional limitation experienced by the Veteran on repetition. The Board is mindful that the Veteran has complained of pain in the lumbar spine. Although VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with the rating criteria (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995)), the overall level of disability demonstrated by the Veteran was not commensurate with the degree of motion loss required for a rating higher than 10 percent even with consideration of pain. Moreover, to the extent that the Veteran did report pain, no VA examiner noted any further loss of motion or function - the Board finds that a disability rating in excess of 10 percent may not be granted under the pertinent rating criteria. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for the functional impairment of the Veteran's lumbar spine disability at any point prior to December 2, 2010. Period beginning on December 2, 2010 As previously mentioned, the Veteran has not attended any scheduled VA examinations since her initial July 2009 examination. However, the record does include her VA treatment records, which show occasional visits for her low back pain. In a December 2, 2010 VA visit, the VA physician noted that the Veteran reported her back hurt most of the time and was aching in nature. The VA physician then examined the Veteran's flexion which showed the Veteran had a forward flexion of 60 degrees, an extension of 30 degrees, and a left tilt of 30 degrees with limited turning on the right to 20 degrees and on the left to 30 to 40 degrees. The Veteran also had pain in her back with straight leg rising in both legs, normal reflexes in the knees and ankles, and normal gait. The Board notes that the evidence of record is void of any of other medical treatment providing a description of the severity of the Veteran's lumbar spine disability. As mentioned above, under 38 C.F.R. § 4.71a, DC 5237, a rating of 20 percent can be granted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. The Boards finds that the December 2010 VA visit warrants a grant of 20 percent for the Veteran's lumbar spine disability. Additionally, a rating in excess of 20 percent is not warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5237, a rating of 40 percent can be granted if there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent if there is unfavorable ankylosis of the entire spine. The Board finds that evidence of record does not include any medical reports, including VA treatment records and VA examinations, documenting the Veteran having a forward flexion of the thoracolumbar spine 30 degrees or less, or a favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of either the entire spine or thoracolumbar spine. The Board acknowledges that VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board notes that there are no medical records of evidence showing severe functional loss due to her lumbar spine disability. Although the Veteran reported feeling back pain daily, there is no evidence shown that it has limited her ability to handle daily tasks or other activities. The evidence has not shown the Veteran's pain in her lumbar spine to be severe enough to result in forward flexion of the thoracolumbar spine 30 degrees or less, or unfavorable or favorable ankylosis of the entire thoracolumbar spine. Further, due to the medical evidence being limited and the Veteran not attending her examinations, the Board cannot determine whether her lumbar spine disability is currently causing any additional functional loss. Therefore, the Veteran's low back pain is considered within her assigned ratings under the Diagnostic Code and Deluca, and the assignment of any higher disability rating in excess of 20 percent is not warranted. Regarding any neurological manifestations of the lumbar spine, the Board notes that while the Veteran has made subjective complaints of radiating pain or numbness, there is no objective evidence of neurological deficits to warrant a separate rating based on neurological symptoms. In light of the foregoing, the Board concludes that a rating of 20 percent, but no higher, from December 2, 2010 is granted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER New and material evidence having not been received, the appeal to reopen service connection for post traumatic concussion disorder is denied. Entitlement to an increased compensable rating for excoriation of the arms and legs is denied. Entitlement to an increased rating in excess of 10 percent for lumbar spine strain for the period prior to December 2, 2010 is denied. An increased rating of 20 percent, but no higher, from December 2, 2010 for lumbar spine strain is granted. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs