Citation Nr: 1736606	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-17 673A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to higher staged initial ratings for service-connected low back disability, (grade 1 anterolisthesis L5-S1, degenerative spondylosis, facet arthropathy, and low back sprain) rated noncompensable prior to January 10, 2017, and 10 percent from January 10, 2017.  

2.  Entitlement to service connection for a left hand disability.

3.  Entitlement to service connection for a right hand disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1989 to May 2010.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  Jurisdiction has been transferred to the Cleveland, Ohio RO.

The Veteran appeared via videoconference and provided testimony before the undersigned Veterans Law Judge in February 2016.  A transcript of the testimony has been associated with the record.  

These matters were previously before the Board in September 2016, when they were remanded for further development.  The matters now return to the Board for appellate consideration.  

The issue of entitlement to service connection for a right hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  For the entire rating period on appeal, the Veteran's back disability was manifested by degenerative arthritis with painful motion.

2.  The most probative evidence of record does not reflect a current left hand disability for VA compensation purposes.


CONCLUSIONS OF LAW

1.  The criteria for a compensable initial rating prior to January 10, 2017, and a staged initial rating in excess of 10 percent from January 10, 2017, for service-connected low back disability (grade 1 anterolisthesis L5-S1, degenerative spondylosis, facet arthropathy, and low back sprain) have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5235-5243 (2016).

2.  The criteria for service connection for a left hand disability are not met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  There has been at least substantial compliance with all remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  All VA examinations and medical opinions provided are adequate for decision-making purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).


Legal Criteria - higher staged initial ratings

Service connection for the Veteran's low back disability was granted in the August 2010 rating decision on appeal, and assigned a noncompensable initial rating under Diagnostic Code 5242, effective from June 1, 2010.  Thus the relevant period on appeal for the Veteran's back disability is from June 1, 2010.  38 C.F.R. § 3.400 (o)(2) (2015);  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  During the pendency of the appeal, a March 2017 rating decision assigned a 10 percent staged initial rating effective from January 10, 2017.  

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the record shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5235-5243.  Intervertebral disc syndrome (IVDS) is rated under DC 5243 and is to be evaluated under the General Rating Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula).  Ratings under the General Rating Formula are made 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.  DC 5242 for degenerative arthritis of the spine may also be rated under DC 5003.  

The General Rating Formula provides for a 10 percent disability rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, with 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.  A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but is not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.

The General Rating Formula provides further guidance in rating diseases or injuries of the spine.  In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  Note (2) provides, in pertinent part, that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion is 240 degrees for the thoracolumbar spine.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  

DC 5293 provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

The holding in DeLuca v. Brown, 8 Vet.App. 202 (1995) clarified that, when evaluating musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath, 1 Vet. App. at 592.  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  However, although pain may cause functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance", in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

Analysis

The record does not contain evidence of ankylosis, limitation of lumbar spine forward flexion, muscle spasm, guarding, abnormal gait, abnormal spinal contour, or loss of disc height of more 50 percent or more.  There are no reports of incapacitating episodes or diagnoses of IVDS.

The Veteran contends that he takes Naproxen for his back pain.  He testified that the Naproxen provides pain relief for the performance of his daily activities.  He has good and bad days.  When it is bad, he has trouble getting out of bed, and cannot bend to tie his shoes.

Concerning the range of motion findings of the joints at issue, the Board notes that the VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain.  Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions.  There is no indication that range of motion testing was performed other than on weight bearing.  Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating.

Prior to January 10, 2017

The record reflects a diagnosis of lumbar strain and degenerative arthritis, as well as normal lumbar range of motion as shown by VA examinations in March 2010 and January 2017.  At both VA examinations, the Veteran did not exhibit a combined range of motion less than 235 degrees.  The March 2010 VA examination showed that the Veteran continued to complain of back pain, however, the pain was not elicited upon range of motion.  He was noted to also have posture and gait within normal limits.  With repetitive range of motion, test range of motion stayed the same.  There was no pain, no weakness, no fatigue, no lack of endurance and no incoordination identified.  Further, it was indicated that there was no painful motion of spasm, no tenderness, no atropy, no guarding and no akylosing.  As the complaint of low back pain was not shown to result in functional impairment prior to January 10, 2017, the preponderance of the probative evidence of record is against the claim.  Hence, theVeteran's noncompensable rating prior to January 10, 2017 is continued. 

In contrast, the January 10, 2017 VA examination showed that the Veteran had pain on range of motion.  While the Veteran reported painful motion on examination in January 2017, all range of motin findings were noted as normal.  The record shows no reported flare ups upon examination and no reported functional loss, or additional functional loss on repetitive use.  Because the Veteran consistently showed no objective or reported functional loss following repetitive use, the record does not show that the Veteran was additionally limited by pain, fatigability, incoordination, pain on movement, or weakness during flare-ups or upon repetitive use over time such that a rating in excess of 10 percent was warranted at any time during the period on appeal.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  

The Board notes that while the Veteran has reported complaints of low back pain consistent with that noted in the clinical records.  However, while he is competent to report observable symptoms of his service-connected low back disabilities at issue, he has not been shown to possess the requisite expertise or training to assess the appropriate schedular disability rating to be assigned under an appropriate diagnostic code.  As such, he is deemed to not be competent in that regard.

The threshold factor for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  In this case, the Veteran has not asserted, and the evidence does not show, that his service-connected low back disabilities are not adequately contemplated by the schedular rating criteria.  Therefore, discussion of whether an extraschedular rating must be considered is not necessary.  Doucette v. Shulkin, No. 15-2818, 2017 WL 877340 (Vet. App. March, 6, 2017).

Thus, as the preponderance of the evidence is against the assignment of a higher staged initial disability rating at any time during the entire period on appeal, the benefit-of-the-doubt doctrine is not for application, and the Veteran's claim for an increased initial rating is denied.  38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Legal Criteria, Service Connection

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).  Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Analysis

The Veteran contends that due to his work as a mechanic in service, he has a left hand disability that causes pain in the left hand, with lack of dexterity, numbness, weakness, and decreased grip strength that has persisted since service.  The Veteran contends that after service, his disability has gotten worse, such that he is unable to hold a phone for more than 15 minutes, and his hands go numb.

The service treatment records are negative for any complaint or abnormal finding relative to the left hand.  A March 2010 VA examination showed no pathology to support a diagnosis of a bilateral hand condition, with full grip strength, no numbness, and no impact on the Veteran's functioning.  The Veteran's VA treatment records show that he reported numbness in 2016, but a VA examination in January 2017 was normal, with full grip strength.  The January 2017 VA examiner opined that the Veteran it was less likely than not that the Veteran had any bilateral hand condition, and that his examination was unrevealing.  The examiner stated that no objective findings substantiate the Veteran's subjective complaints, and that there is no relevant diagnosis for the requested conditions.  The Veteran also testified at a February 2016 hearing that he had not sought treatment or had any diagnosis for his left hand condition.  

While the Veteran is competent to report symptoms such as pain, he is not competent to diagnose a particular condition or determine its etiology.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37.  Thus, the Board affords greater probative weight to the findings of the medical examiners, who applied their medical knowledge and expertise in determining that the Veteran does not have a left hand disability.  Therefore, the Board finds that the most probative evidence of record is not in relative equipoise.  As the record does not demonstrate that the Veteran has a current left hand disability, the Veteran's claim for service connection is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  



ORDER

Entitlement to higher staged initial ratings for service-connected low back disability, rated noncompensable prior to January 10, 2017, and 10 percent from January 10, 2017, is denied.

Entitlement to service connection for a left hand disability is denied.


REMAND

The Board finds that the issue of entitlement to service connection for a right hand disability must be remanded for further development before a decision may be made on the merits.

Pursuant to the September 2016 remand, the Veteran attended a January 2017 VA examination, as discussed above.  With regard to a bilateral hand disability, the examiner opined that it was less likely than not that the Veteran has conditions of epicondylitis, trigger finger, or bursitis incurred in or due to service.  The examiner states that the Veteran's current hand evaluation is unrevealing, and that there are no objective findings that substantiate the subjective complaints.  Upon review, the Board finds that the January 2017 VA examiner's opinion is inadequate as to determining the etiology of a right hand disability.  See Barr v. Nicholson, 21 Vet.App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Board notes that during the relevant appeal period, the Veteran was diagnosed with and treated for trigger finger of the right 3rd digit in February 2012.  The February 2012 diagnosis and treatment conflicts with the VA examiner's opinion that the Veteran did not have a current right hand condition.  A VA examiner's opinion as to whether the Veteran has a current disability for compensation purposes must contemplate the entire period on appeal, not just the date of examination.  Further, while the examiner also stated that the Veteran did not attribute his trigger finger to service, the Veteran's lay statements regarding symptomatology implicitly attribute the condition to service.  Thus, the issue must be remanded for a supplemental opinion with supporting rationale as to the etiology of the Veteran's right hand trigger finger.  See Stegall v. West, 11 Vet.App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Forward the record and a copy of this Remand to the examiner who conducted the January 2017 VA examination or, if that examiner is unavailable, to another suitably qualified VA clinician for completion of an addendum opinion.  The examiner must review the entire record and consider the Veteran's lay statements.  The examiner must address the entire period on appeal, and any disabilities the Veteran had during that time, even if currently resolved.  If additional examination of the Veteran is deemed necessary by the clinician in order to provide the requested opinion, such examination should be conducted.  

The examiner must opine whether it is at least as likely as not (50 percent probability or more) that any right hand disability diagnosed proximate to, or during the appeal period, even if currently resolved, (to include trigger finger of the right 3rd digit diagnosed and treated in February 2012) is related to active duty service.  The examiner must provide a complete rationale for the opinion proffered.

2.  After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted for a right hand disability.  If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  A reasonable period should be allowed for response before the appeal is returned to the Board.

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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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