Citation Nr: 1806469	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO. 14-09 202	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to November 6, 2015, and in excess of 30 percent thereafter.

2. Entitlement to a disability rating in excess of 20 percent for status post L5-S1 discectomy, status post fusion L5-S1 with instrumentation, and intervertebral disc syndrome prior to July 1, 2014, and in excess of 10 percent thereafter.

3. Entitlement to an initial disability rating in excess of 20 percent for sciatica of the right lower extremity prior to July 1, 2014, and a compensable evaluation thereafter.

4. Entitlement to an initial disability rating in excess of 20 percent for sciatica of the left lower extremity prior to July 1, 2014, and a compensable evaluation thereafter.

5. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected status post L5-S1 discectomy.



REPRESENTATION

Veteran represented by:	Jan Dils, Attorney-at-Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1982 to April 2006.

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2011 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In an April 2014 rating decision, the RO decreased the Veteran's disability rating for his status post L5-S1 discectomy, status post fusion L5-S1 with instrumentation, and intervertebral disc syndrome to 10 percent, effective from July 1, 2014. The RO also decreased the Veteran's disability ratings for his sciatica of the right and left lower extremities, each to a noncompensable or 0 percent disability rating, effective from July 1, 2014. In January 2016, the RO granted an increased 30 percent disability rating for the Veteran's PTSD, effective from November 6, 2015. As this was not a full grant of the benefits sought on appeal, and the Veteran did not indicate that he agreed with the ratings, his claims have remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

The issues of entitlement to (1) a disability rating in excess of 20 percent for status post L5-S1 discectomy, status post fusion L5-S1 with instrumentation, and intervertebral disc syndrome prior to July 1, 2014, and in excess of 10 percent thereafter; (2) an initial disability rating in excess of 20 percent for sciatica of the right lower extremity prior to July 1, 2014, and a compensable evaluation thereafter; (3) an initial disability rating in excess of 20 percent for sciatica of the left lower extremity prior to July 1, 2014, and a compensable evaluation thereafter; and (4) service connection for a cervical spine disability, to include as secondary to service-connected status post L5-S1 discectomy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to November 6, 2015, the Veteran did not have a diagnosis of any mental disorder (including PTSD) that conformed to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) criteria; or experienced sleep disturbance that resulted in debilitating fatigue, cognitive impairments or a combination of other signs and symptoms that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year.

2.  On November 6, 2015, the Veteran was diagnosed with PTSD and persistent depressive disorder under DSM-5.

3. Since November 6, 2015, the Veteran's PTSD has not been manifested by occupational and social impairment with reduced reliability and productivity.



CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for PTSD prior to November 6, 2015, and in excess of 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88b, Diagnostic Code (DC) 6354, 4.125, 4.126(a), 4.130, DC 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A Report of General Information (VA Form 27-0820) indicates that on December 6, 2017, the Veteran called VA regarding a December 2, 2017 letter for proposed reduction. The Veteran indicated that he would send forms and requested an extension of 60 days to compile evidence. The issues of increased ratings for status post L5-S1 discectomy and the associated sciatica of the bilateral lower extremities are remanded below to afford the Veteran VA examinations. The Board is not issuing decisions on these issues therefore the Veteran is not prejudiced by the remand below. 

Neither the Veteran nor the representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017).

In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

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). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to his through her senses. See Layno, 6 Vet. App. at 469. 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. Lay evidence may establish a diagnosis of a simple medical disability, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. § 5107(b); 38 C.F.R. § 3.102.

PTSD is evaluated under the General Rating Formula Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 10 percent disability is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent disability rating is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating is assigned for major depressive disorder manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. 

A 100 percent disability rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 

The Court in Mauerhan v. Principi stated that "when evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupation and social impairment." See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational and social impairment equivalent to that which would be caused by those listed in the rating criteria the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 442.

The Veteran contends that his PTSD should be rated higher than the initial rating of 10 percent prior November 6, 2015 and the currently-assigned disability rating of 30 percent. During the September 2017 Board hearing, the Veteran testified that lay statements from his wife and employer detail symptoms of PTSD including difficulty with anger issues, irritability, isolation, and rituals. The Veteran also reported that he was hypervigilant, had difficulty being around people, was depressed, and had sleep issues which would affect his occupation by causing him to be over-tired, unable to focus or concentrate, and ultimately resulted in him taking time off from work.

In November 2013, the Veteran was afforded a VA Gulf War examination. The VA examiner indicated that the Veteran experienced sleep disturbances upon his return from Iraq in August 2005 which had persisted but was an undiagnosed illness. A mental disorder was not diagnosed. The examination report reflects that due to sleep disturbance, the Veteran was fatigued most of the time and this affected his clarity of thought and overall energy level. In March 2014, the RO granted service-connection for sleep disturbance at a 10 percent disability rating, effective from September 18, 2012. The RO evaluated the sleep disturbance analogous to chronic fatigue syndrome under DC 8863-6354.

Following a VA PTSD examination in March 2014, the VA examiner found that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. Specifically, the examiner indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 and did not have a mental disorder that conformed to DSM-5 criteria. The examiner indicated that the Veteran reported "survival guilt" from assigning positions to individuals who later got killed. Under PTSD stressors, the examiner wrote "none" and indicated that it did not meet criterion A (adequate to support diagnosis of PTSD). The examiner only checked "chronic sleep impairment" under symptoms that applied to the Veteran's diagnosis and checked "no" when asked if there were any other symptoms attributed to PTSD (and other mental disorders) not listed. The examiner wrote that based on the examination, the Veteran did not need to seek any follow-up treatment and did not appear to pose any threat of danger or injury to self or others. Also, he noted that there was no diagnosis based on DSM-4 criteria and the etiology of complaints of chronic sleep difficulty is unknown and no diagnosis of a mental disorder was found.

The Board finds that a preponderance of the evidence is against a finding that prior to November 6, 2015 an initial disability rating in excess of 10 percent is warranted for the Veteran's sleep disturbance or PTSD under either DC 8863-6354 or DC 9411. The Veteran has not shown that his sleep disturbance resulted in debilitating fatigue, cognitive impairments or a combination of other signs and symptoms that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year, to warrant an increased 20 percent under DC 8863-6354. Prior to November 6, 2015, the Veteran has not shown a diagnosis of a mental disorder, therefore DC 9411 or the General Rating Formula Mental Disorders, is not applicable. Accordingly, the Board finds that an increased rating in excess of 10 percent is not warranted prior to November 6, 2015.

The Board finds that from November 6, 2015, the preponderance of the evidence is against a finding that the Veteran's PTSD warrants an evaluation in excess of 30 percent.  The Veteran was diagnosed with PTSD under DSM-5 criteria during the November 2015 VA examination. The Veteran was also diagnosed with persistent depressive disorder. At the examination, the Veteran was described as tired but alert, fully orientated, and cooperative with normal grooming. The Veteran maintained good eye contact, speech was logical, linear, goal-directed, and the content was congruent with affect. The Veteran displayed no evidence of psychomotor agitation or retardation, psychotic processes, or organicity. The examination report also reflects that the Veteran was of average intelligence. The Veteran denied any current or recent suicidal ideation. The examiner indicated that symptoms that applied to the Veteran's diagnosis included depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's level of occupational and social impairment with regard to all mental diagnoses is best summarized as "occupational and social impairment with reduced reliability and productivity."

The examiner stated that although the Veteran denied most ratable symptoms, his inability to either earn a living at his job or change directions suggested markedly greater impairment, probably due to more severe depression than the Veteran was willing or able to admit. Further, the examiner indicated that the Veteran required psychotherapy and medication assessment to reduce his PTSD and depressive symptoms. The examiner stated that the Veteran did not appear to pose any threat of danger or injury to self or others. The examination report reflects that the Veteran reported chronic symptoms of depression since late in his career, when he was passed over for promotion. The examiner indicated that the Veteran's claims file was reviewed including the lay statements from the Veteran's wife and employer.

In a letter received January 2016, the Veteran's wife indicated that in a November 2015 letter, she referenced that the Veteran experienced symptoms such as mood swings, irritability, body pain, and a sleep disorder. The Veteran's wife contended that the Veteran's mood swings were constant, that he was unable to engage in conversation or go out socially and is not comfortable in public or crowded places. She added that the Veteran spent a great deal of time to himself. She explained that the Veteran's irritability is due to lack of sleep and the body pain that he suffered daily from service related injuries. The Veteran's wife also stated that the Veteran has a light on in every room at night, constantly checks the doors and windows to make sure they are locked and his alarm is set, and noises such as dogs barking or crying of small children agitated him. 

In an October 2015 letter, the Veteran's employer indicated that the Veteran was a strong worker but, over time, had displayed an inability to stay focused at times due to fatigue and mood swings and missed days in the office as a result. The employer stated that the Veteran would often come to work tired or cranky due to his inability to get a good night's rest. He added that the Veteran was a "dynamite salesman" and most times without proper rest he is terrific but often times very short on small talk and can somewhat be intimidating to perspective clients and office staff. The employer also stated that many days when the Veteran was not in the right frame of mind for sales or interaction with younger employees, they agreed that it was best for the Veteran to get some rest and come back to the office refreshed and focused. The employer praised the Veteran as a true professional, someone who is very prideful and extremely proud of his military service, and an outstanding agent for his company. The employer indicated that he would love to see what the Veteran would look like if he were able to come to work energized and focused consistently.

The weight of the evidence demonstrates that throughout the appeal period, the criteria for an increased disability rating in excess of 30 percent for the Veteran's service-connected PTSD have not been met since November 6, 2015. Specifically, the Veteran's PTSD has not been manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to such symptoms such as: flattened affect; circumstantial; circumlocutory; or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintain effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. The Board has fully considered the frequency, severity, and duration of all of the Veteran's psychiatric symptoms with respect to their effect on other areas of overall occupational and social functioning. 38 C.F.R. § 4.126(a).

The symptoms exhibited by the Veteran are contemplated by the 30 percent disability rating in effect, which encompasses occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, chronic sleep impairment. The November 2015 VA examiner checked the box on the examination report that the Veteran's level of occupational and social impairment with regard to all mental diagnoses was best summarized as "occupational and social impairment with reduced reliability and productivity," which is the criteria for the 50 percent rating under DC 9411. The examiner's characterization of the level of disability as described in the general rating formula is not, however, binding on the Board. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (noting that it is the duty of VA adjudicators, not medical examiners, to apply the appropriate legal standard). Additionally, the examiner is not provided the list of the types of symptoms that such rating contemplates.  Regardless, the adjudicator decides the evaluation-not the examiner.

The symptoms described by the Veteran and his wife during the September 2017 Board hearing and lay statements are also contemplated by the 30 percent rating: depressed mood, occasional decrease in work efficiency, chronic sleep impairment, and suspiciousness. The Veteran has remained at the same employer since October 2009, which is more than eight years.

The preponderance of the evidence is against a finding that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity to warrant a 50 percent rating. The October 2015 letter from his employer praises the Veteran's ability to be as a "true professional" and an "outstanding agent" with the ability to deal with specific complex matters listed by the employer. The letter describes irritability caused by the Veteran's lack of sleep which is reflected in a 30 percent rating. This is also supported by the Veteran's wife's lay statements in which she directly stated that the Veteran's irritability is due to lack of sleep and the body pain that he suffered daily from service related injuries.  The Board finds that such symptoms are contemplated by the criteria that describes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).

The Veteran has consistently denied suicidal or homicidal ideation. VA examiners have not found that the Veteran to pose any danger to self or others or the inability to perform activities of daily living including maintaining minimal personal hygiene. In addition, VA examiners have documented no gross impairment in thought process or communication. At the September 2017 Board hearing, the Veteran testified that he still had interest in hobbies including fishing, shooting, sports, reading and research (particularly military history), and politics, which "relax" him.

The Veteran has a relationship with his supportive wife and has clearly demonstrated a good relationship with his employer. The Veteran himself testified that he had a "good relationship" with his employer during the September 2017 Board hearing. The Veteran has not been hospitalized for mental health. The Veteran also testified that he was not receiving any treatment for his PTSD. The record reflects that the Veteran was able to maintain numerous interpersonal relationships. The evidence has also shown that the Veteran has worked full time at the same place since October 2009, with high praise.

Therefore, in consideration of the frequency, severity, and duration of the Veteran's symptoms and their effect on the Veteran's overall occupational and social functioning, the Board finds that the Veteran's PTSD does not manifest in occupational and social impairment with reduced reliability and productivity since November 6, 2011, and a 50 percent disability rating is not warranted. The Veteran's PTSD more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which warrants a 30 percent disability rating and no higher.

The Board notes that in a December 2015 Statement of the Case (SOC), the RO indicated that an evaluation of 50 percent was assigned effective November 6, 2015, however in a January 2016 Supplemental Statement of the Case (SSOC), the RO indicated that the evaluation of PTSD at 30 percent is continued. Although the December 2015 SOC reflects 50 percent in the "Decision" conclusion, the "Reasons and Bases" provides an explanation in support of a 30 percent evaluation effective November 6, 2015. Regardless, the Board has considered the evidence de novo and finds that the 30 percent evaluation as currently assigned since November 6, 2015 most accurately portrays the Veteran's disability picture, as discussed above.

For these reasons, the Board finds the preponderance of the evidence weighs against entitlement to an increased an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to November 6, 2015, and in excess of 30 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert, 1 Vet. App. at 55.


ORDER

An initial disability rating in excess of 10 percent for PTSD prior to November 6, 2015, and in excess of 30 percent thereafter, is denied.


REMAND

A review of the record discloses further development is needed with respect to the Veteran's claims of entitlement to (1) an increased rating for status post L5-S1 discectomy; (2) an increased rating for sciatica of the right lower extremity; (3) an increased rating for sciatica of the left lower extremity and (4) service connection for a cervical spine disability, to include as secondary to service-connected status post L5-S1 discectomy


Increased Rating Claims for Status Post L5-S1 Discectomy and Sciatica

The Veteran contends that his status post L5-S1 discectomy (back disability) is worse than the disability rating currently assigned. The Veteran was last afforded a VA examination in December 2013 in order to establish the severity of his back disability. During the September 2017 Board hearing, the Veteran testified his back disability increased in severity since his last VA examination. Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his lumbar spine disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The VA examination will also assess the current nature, extent and severity of the Veteran's sciatica of the bilateral lower extremities as it is associated to the Veteran's back disability.

Service Connection - Cervical Spine

The Veteran contends that service connection for a cervical spine disability is warranted because it is caused by or aggravated by his back disability.

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

During the September 2017 Board video conference hearing, the Veteran testified that his doctors told him that there is a direct correlation between his neck and spine. He contended that his back disability aggravated his neck disability. Therefore, the Board finds that the Veteran should be afforded a VA examination to confirm a diagnosis of a cervical spine disability, determine severity, and provide etiology opinions to include whether or not it was caused by or aggravated by his service-connected back disability, if applicable.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected back disability and associated sciatica of the bilateral lower extremities.

The Veteran's claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's back disability and associated sciatica of the bilateral lower extremities.

2. Schedule the Veteran for VA examination to confirm a diagnosis of a cervical spine disability, determine severity, and provide etiology opinions to include whether or not it was caused by or aggravated by the service-connected back disability, if applicable.

The examiner is informed that the Veteran is service-connected for status post L5-S1 discectomy, status post fusion L5-S1 with instrumentation, and intervertebral disc syndrome (back disability); and associated sciatica of the bilateral lower extremities.

The examiner is asked to answer the following questions: 

a. Whether the Veteran has a current diagnosis of a cervical spine disability? If so, was is it at least as likely as not (50 percent or greater likelihood) caused by the service-connected back disability or associated sciatica of the bilateral lower extremities?

b. If the answer to a. is negative, is it at least as likely as not that the cervical spine disability is aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected back disability or associated sciatica of the bilateral lower extremities?

c. If the examiner finds that the service-connected back disability or associated sciatica the bilateral lower extremities permanently aggravates the cervical spine disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the cervical spine disability prior to aggravation. If the examiner is unable to establish a baseline for the cervical spine disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. After the above is complete, readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 

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 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).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs