Citation Nr: 1808352	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  12-33 355	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to a rating higher than 20 percent for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease.

2. Entitlement to an initial rating higher than 10 percent for the left lower extremity, associated with intervertebral disc syndrome and residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran & S.M.


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

The Veteran had active service from June 1978 to March 1984.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A notice of disagreement was received in November 2006, a statement of the case was issued October 2012, and a VA Form 9 was received in October 2012. 

The Veteran requested a hearing before the Board.  The requested hearing was conducted in November 2017 by the undersigned Veterans Law Judge.  A transcript is associated with the claims file.



FINDINGS OF FACT

1. From April 11, 2006 to January 10, 2008, the Veteran's residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease was manifested by forward flexion of the thoracolumbar spine 30 degrees or less.

2. From January 10, 2008 to August 23, 2017, the Veteran's residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less.

3. From August 23, 2017, the Veteran's residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease is manifested by forward flexion of the thoracolumbar spine 30 degrees or less.

4. Prior to March 24, 2012, the Veteran's left lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve.

5. From March 24, 2012, the Veteran's left lower extremity is manifested by severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.


CONCLUSIONS OF LAW

1. From April 11, 2006 to January 10, 2008, the criteria for a rating of 40 percent, but no higher, for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease, are met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017).

2. From January 10, 2008 to August 23, 2017, the criteria for a rating higher than 20 percent for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017).

3. From August 23, 2017, the criteria for a rating of 40 percent, but no higher, for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease, are met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017).


4. Prior to March 24, 2012, the criteria for an initial rating of 20 percent rating, but no higher, for the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124a, Diagnostic Code 8520 (2017).

5. From March 24, 2012, the criteria for a rating of 60 percent rating, but no higher, for the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124a, Diagnostic Code 8520 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 and 3.326(a) (2017). 

In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2006, prior to the initial unfavorable decision in this case. The Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

Regarding the initial increased rating claim, the Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to a higher initial rating, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received a timely SOC in October 2012. 

As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C. § 5103A. VA has associated service treatment records, and post-service records with the claims folder. Virtual VA and VBMS records were reviewed. Additionally, the Veteran was afforded VA examinations. The Veteran submitted a copy of an examination conducted in connection with a Social Security claim, with waiver, in December 2017. 

The Board notes that additional Social Security records have not been associated with the claims file. Furthermore, the Board acknowledges the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), but the Board finds that here it is not applicable to the issue on appeal. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. For the Veteran's spine disability, although the spine examinations do not provide range of motion in weight bearing and non-weight bearing and active and passive motion, the Board finds that it may nonetheless proceed to adjudication of the claim. A new examination would not reveal previous range of motion findings. Additionally, the Board is granting the highest rating available based on limitation of motion for the Veteran's spine. The range of motion necessary for a higher evaluation would be no range of motion - unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. The Veteran has not asserted he suffers from ankylosis. Thus, remand for an examination that complies with Correia would not provide any additional benefit to the Veteran, and no useful purpose would be served in remanding this matter to obtain additional treatment records and/or Social Security records. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran.

The Board notes that the Veteran was not afforded contemporaneous VA examinations, as there was sufficient evidence in the claims file in the form of VA and private treatment records, as well as hearing testimony, to properly rate the Veteran's disabilities.

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judge in November 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.

II. Increased Ratings

The Veteran seeks entitlement to increased ratings for his residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease and his left lower extremity.

Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126.

The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability.

A. Entitlement to a Rating Higher than 20 Percent for Residuals of a Compression Fracture of the Thoracic Spine with Lumbar Degenerative Joint Disease

Service connection for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease was established by a June 1984 rating decision, at which time a 10 percent rating was assigned, effective March 1984. The Veteran asserted in April 2006 that his disability had increased in severity, and in a July 2006 rating decision, the Veteran's disability rating was increased to 20 percent, effective April 11, 2006. The Veteran seeks a higher rating.

The Board notes that while the regulations pertaining to disabilities of the spine have undergone amendments, these changes do not affect the present claim, as the Veteran's claim was filed in April 2006, subsequent to the most regulation change. Thus, the rating criteria currently in effect, the General Rating Formula for Diseases and Injuries of the Spine, are the only rating criteria for current consideration.

The Veteran is currently rated as 20 percent disabled under Diagnostic Code 5235. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id.  

A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id.  

Here, the Board finds that the Veteran is entitled to a rating of 40 percent, for the period on appeal from April 11, 2006 to January 10, 2008 and from August 23, 2017. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). 

VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 

For a 40 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited to 30 degrees or less, or there must be favorable ankylosis of the entire thoracolumbar spine.

The Board notes that the evidence indicates the Veteran's forward flexion was noted to be 50 degrees in June 2006, with pain beginning at 30 degrees. The examiner stated that the Veteran's joint function of the spine was additionally limited by pain, fatigue, weakness, lack of endurance and that pain has the major functional impact. Similarly, an August 2017 Disability Consultant Examination indicated the Veteran's flexion was to 5 degrees. Therefore, the Board finds that a rating of 40 percent is warranted from April 11, 2006 to January 10, 2008 and from August 23, 2017. A rating higher than 40 percent for these time periods is not established, as the evidence does not indicate that the Veteran suffered from unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 

Additionally, a rating higher than 40 percent during these times periods is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as the evidence does not indicate the Veteran had incapacitating episodes having a total duration of at least 6 weeks during the prior 12 months.

Of note, the Veteran's VA examinations in January 2008, January 2009, January 2011, and May 2012, fail to demonstrate his forward flexion was actually or functionally limited to 30 degrees, or that he had favorable ankylosis of the entire thoracolumbar spine, to warrant a rating higher than 20 percent. The medical evidence from January 2008 to August 2017 also fails to indicate that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks, to warrant a rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Therefore, the Board finds that a rating higher than 20 percent is not warranted from January 10, 2008 to August 23, 2017.

The current regulations also allow for separate neurological evaluations. The Board notes that the Veteran denied any bladder or bowel problems during his VA examinations. Importantly, the Veteran is currently service-connected for his left lower extremity, and this rating is discussed below. 

The Board has considered the statements and arguments of the Veteran as to the extent of his current disability. The Veteran is competent to describe his symptoms and that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for increase, VA must consider the factors as enumerated in the rating criteria. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Further, no factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. 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 period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology.

In conclusion, the Board finds that a 40 percent disability rating is warranted for the Veteran's residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease, from April 11, 2006 to January 10, 2008 and from August 23, 2017. As the preponderance of the evidence, however, is against the assignment of a disability rating higher than 20 percent from January 10, 2008 to August 23, 2017, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.



B. Entitlement to an Initial Rating Higher than 10 Percent for the Left Lower Extremity, Associated with Intervertebral Disc Syndrome and Residuals of a Compression Fracture of the Thoracic Spine with Lumbar Degenerative Joint Disease

Service connection for the left lower extremity was established by a July 2006 rating decision, at which time a 10 percent rating was assigned, effective April 11, 2006. The Veteran seeks a higher rating.

The Veteran is currently rated as 10 percent disabled under Diagnostic Code 8520. A rating of 10 percent is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A rating of 40 percent is warranted for moderately severe incomplete paralysis of the sciatic nerve, and a rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A maximum 80 percent rating may be assigned when there is complete paralysis, i.e., in instances where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

A June 2006 VA examination demonstrated sensory deficit of the left lateral leg, left dorsal foot, and left lateral foot. Motor weakness of the left foot extension was 4/5 and left great toe extension was 4/5.

January 2008, January 2009, and January 2011 VA examinations also demonstrated sensory deficit of left lateral leg and left dorsal foot. 

A March 2012 letter from the Veteran's physician stated that the Veteran presented with loss of muscle strength in the lower limb in 2009 and decreased sensitivity, as a result of his decreased intervertebral space. The physician stated that currently, the Veteran suffers from a "major loss of muscle strength" in his lower extremity resulting in claudication in walking for which he must use a cane for support during short distances and a wheelchair for long distances. The physician stated that the Veteran's disease was chronic and over time, the damage would increase, as seen in the prior three years.

The Board finds that the medical evidence supports entitlement to an initial rating of 20 percent rating, and no more, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, prior to March 24, 2012, and to a rating of 60 percent, thereafter. 

Prior to March 24, 2012, the evidence indicates that the Veteran's left lower extremity was manifested by not only sensory deficits, but also some motor/muscle weakness. See e.g. June 2006 VA examination; March 2012 statement from private physician. The Board finds these symptoms more nearly approximately moderate incomplete paralysis, and therefore warrants a rating of 20 percent.  A rating higher than 20 percent is not established, however, as there is no indication that the Veteran's symptoms during this time period were moderately severe.

From March 24, 2012, the Board finds that the evidence indicates the Veteran's left lower extremity symptoms more nearly approximate a rating of 60 percent, due to severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The March 2012 statement from the Veteran's physician specifically noted that the Veteran suffers from a "major loss of muscle strength" and requires a cane for short distances and a wheelchair for long distances. However, there is no evidence of complete paralysis such as foot dangling and dropping, no active movement possible below the knee, or weakened flexion of the knee. Therefore, an evaluation higher than 60 percent is not warranted, from March 24, 2012. A rating higher than 60 percent is not warranted, as the Veteran has not asserted, and the medical evidence does not indicate, that his left foot dangles and drops, there is no active movement possible of muscles below the knee, or that flexion of the knee is weakened or lost due to his sciatic nerve disability.

The Board has considered the statements and arguments of the Veteran as to the extent of his current disability. The Veteran is competent to describe his symptoms and that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for increase, VA must consider the factors as enumerated in the rating criteria. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Further, no factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. 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 period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology.

In conclusion, the Board finds that an initial 20 percent disability rating is warranted for the Veteran's left lower extremity, prior to March 24, 2012, and a rating of 60 percent is warranted, thereafter. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, 1 Vet. App. at 55.


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ORDER

From April 11, 2006 to January 10, 2008, entitlement to a rating of 40 percent, but no higher, for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease, is granted, subject to the laws and regulations governing the award of monetary benefits.

From January 10, 2008 to August 23, 2017, entitlement to a rating higher than 20 percent for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease is denied.

From August 23, 2017, entitlement to a rating of 40 percent, but no higher, for residuals of a compression fracture of the thoracic spine with lumbar degenerative joint disease, is granted, subject to the law and regulations governing the award of monetary benefits.

Prior to March 24, 2012, entitlement to an initial rating of 20 percent, but no higher, for the left lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits.

From March 24, 2012, entitlement to a rating of 60 percent, but no higher, for the left lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs