Citation Nr: 1806482 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease, lumbar spine. 2. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy. 3. Whether new and material evidence has been received to reopen a claim for service connection for a headache disability. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for a right leg disability. 7. Entitlement to service connection for an acquired psychiatric disability, to include depression. 8. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Kenneth L. LaVan, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from September 1979 to April 1985, with additional service in the Army National Guard, including active duty for training (ACDUTRA) from August to December 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for depression as encompassing entitlement to service connection for an acquired psychiatric disability, to include depression, regardless of the precise diagnosis. The Board notes that the Veteran has submitted a timely January 2016 and October 2017 notice of disagreement regarding the denial of service connection for hepatitis C, left knee instability, residuals of prostate cancer, and scars of the face. As it appears that the RO is currently working on these issues, the Board will not take jurisdiction in order to request a statement of the case. However, the RO is on notice that these issues require further adjudication at this point. The Veteran provided testimony during a videoconference hearing before the undersigned in May 2017. A transcript has been associated with the claims file. The issues of service connection for right shoulder, cervical spine, right leg, and acquired psychiatric disabilities, the claim to reopen service connection for a headache disability, entitlement to a higher initial rating for left lower extremity radiculopathy, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's lumbar spine disability is manifested, at worst, by forward flexion to 70 degrees and combined range of motion of 170 degrees, as well as guarding and muscle spasm without resulting in abnormal gait or spinal contour and without ankylosis of the spine or doctor prescribed bedrest for incapacitating episodes. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for degenerative disc disease, lumbar spine, disability are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in October 2011 and June 2012. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records, Social Security Administration (SSA) disability records, and all identified VA and private treatment records. The Veteran has not identified and authorized VA to obtain any outstanding and available medical treatment records. Neither the Veteran nor his representative has raised any 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). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Higher Initial Rating: Lumbar Spine Disability The Veteran contends that his lumbar spine disability is worse than currently rated. The Board finds that a higher initial rating in excess of 10 percent is not warranted. Disabilities of the spine, such as lumbosacral strain, can be rated according to the General Rating Formula for Diseases and Injuries of the Spine, which allows for separate ratings for neurologic disabilities, or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, depending on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 3.25 (2017). According to the Code Sheets, the Veteran's lumbar spine disability is rated as 10 percent disabling under Diagnostic Code 5243, for IVDS, although the analysis applied was for Diagnostic Code 5242. Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), the next highest disability rating, a 20 percent rating, is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. A 40 percent rating is warranted where forward thoracolumbar flexion is limited to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine (2017). Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5) (2017). Under the formula for IVDS based on incapacitating episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243, the next highest disability rating, a 20 percent rating, is warranted where there are 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 contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating, contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. These criteria are an alternative to rating on the basis of orthopedic and neurologic manifestations under the General Formula for Diseases and Injuries of the Spine, and a rating is assigned on the basis of whichever method results in the higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2) (2017). In order to be awarded a disability rating in excess of 10 percent, the evidence must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, ankylosis, or doctor prescribed bedrest for incapacitating episodes having a total duration of at least two weeks during the past twelve months. The Board notes that throughout two VA examinations and hundreds of pages of VA and private treatment records, forward flexion has been limited at most to 70 percent and combined range of thoracolumbar motion has been limited at most to 170 degrees. Use after three repetitions and factors such as pain, flare-ups, fatigue, weakness, and incoordination have not been shown to result in additional limitation of motion or compensable loss of function. Moreover, while guarding and spasms were noted during the July 2011 VA examination and at times during the treatment records, such symptoms have not been shown to result in abnormal gait or spinal contour. The Board further notes that ankylosis has never been demonstrated. In fact, each VA examiner found that there was no ankylosis and found that the Veteran was able to bend his back in all ways. Throughout this period, the Veteran has demonstrated an ability to move the spine in all directions. The evidence, including the lay evidence, shows no indication whatsoever that the spine has been fixed in extension or flexion at any time during this period, thus demonstrating the absence of ankylosis. Therefore, an increased rating in excess of 10 percent is not warranted under Diagnostic Code 5242 or the general rating formula for spine disorders. Similarly, the evidence does not demonstrate that the Veteran has ever been prescribed two weeks or more of bedrest by a doctor. The Veteran has not described any period of such bedrest, certainly not lasting two weeks of any year. As such, a rating in excess of 10 percent is not warranted under the rating criteria for IVDS. The Board notes that all possibly relevant diagnostic codes have been considered, but finds that no other codes are applicable. The Board notes that left lower extremity radiculopathy is currently on appeal and discussed in the remand portion of this decision. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his back disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Therefore, there is no basis on which to grant an increased schedular rating in excess of 10 percent for the service-connected back disability. 38 C.F.R. §§ 4.3, 4.7. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran's back disability has manifested in pain, fatigue, limitation of motion, and spasm, particularly with prolonged standing. These manifestations are specifically contemplated by the rating criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against awarding a disability rating in excess of 10 percent for the service-connected back disability in this case. In arriving at the decision to deny a rating in excess of 10 percent, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A disability rating in excess of 10 percent for degenerative disc disease, lumbar spine, is denied. REMAND The remaining service connection and initial rating issues on appeal were last adjudicated in a February 2014 rating decision. Since then, the RO added multiple pieces of new evidence, including SSA disability records, VA treatment records, service treatment records, and VA examinations. However, unlike the lumbar spine disability issue, which was readjudicated in a September 2017 rating decision, the remaining issues were not then readjudicated with consideration of the new evidence in a supplemental statement of the case (SSOC) or rating decision. As this evidence was obtained by the RO and a waiver has not been submitted regarding this evidence, a remand is required. The issue of TDIU is intertwined with the issues being remanded, and thus, must also be remanded to allow for proper development of all relevant issues. Accordingly, the case is REMANDED for the following action: Readjudicate the issues regarding the left lower extremity radiculopathy, right shoulder, cervical spine, right leg disability, headaches, and acquired psychiatric disabilities, and TDIU in light of all evidence received or added to the record since the February 2014 SSOC. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 (West 2012). ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs