Citation Nr: 1749098	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  98-15 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an evaluation in excess of 40 percent for post-operative residuals of fusion of L5-S1, with spondylolisthesis at L5-S1 and degenerative joint disease at L3-L4 (lumbar spine or low back disability).

2.  Entitlement to service connection for radiculopathy of the left lower extremity, secondary to the service-connected low back disability.

3.  Entitlement to a finding of total disability based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Colin E. Kemmerly, Esq.




ATTORNEY FOR THE BOARD

J. I. Tissera, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1970 to July 1977.

This case matter comes to the Board of Veterans' Appeals (Board) on appeal from May 1998 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  Jurisdiction over the case was subsequently transferred to the RO in Montgomery, Alabama.

When this case was last before the Board in November 2015, it was remanded for further development.

The Veteran was first service connected for the lumbar spine disability in a February 1978 RO decision, granting a 20 percent rating from July 1977.  The Veteran was later granted an increased evaluation in a July 1996 RO decision, granting a 40 percent rating from December 1994.  The June 2009 RO decision granted service connection for radiculopathy of the right lower extremity, but denied service connection for radiculopathy of the left lower extremity.

The issues of service connection for radiculopathy of the left lower extremity and 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 has not manifested in unfavorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for the lumbar spine disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 
38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, DC 5239, 5243 (2016); 38 C.F.R. § 4.71a, DC 5289, 5293 (2002).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The duty to notify has been met.  Neither the Veteran nor his representative has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

The duty to assist includes assisting the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The RO associated the Veteran's service and VA treatment records with the claims file.  All released or submitted private treatment records have been associated with the claims file to the extent possible. 

In July 2017, the Veteran's representative filed an appellate brief and cited several contentions.  Some contentions relate to the remanded issues below, but those pertinent to this claim are addressed here.

The representative contends that the RO failed to document or provide documentation to the Veteran of the RO's efforts to obtain the Veteran's records from the VA medical centers (VAMCs) in Manhattan, New York, New York, and East Orange, New Jersey, for the period of December 1996 to December 1997, as directed by the November 2015 Board remand.  While the RO did not provide documentation to the Veteran of the RO's efforts to obtain these medical records, the RO's efforts are documented in the Veteran's claims file.  On April 4, 2016, the RO sent a request to the Manhattan VA office for the Veteran's records from December 1996 to December 1997.  The request included a statement that the office provide a negative response if no information pertaining to the Veteran could be found.  On April 21, 2016, the Manhattan VA office responded, stating that no treatment records were found.  A follow up request to the Manhattan VA office was sent on September 6, 2016.  The Manhattan VA office responded on November 25, 2016, stating that they did not have any hardcopy records for the Veteran during that date range, and the only records available are electronic records that are already in the CAPRI System.  A note written on a medical record from East Orange VAMC in December 1997 states that the Veteran's records were transferred over to the Manhattan VAMC.  The RO obtained all available records from the East Orange and Manhattan VAMCs within the date range.  Therefore, the RO substantially complied with the November 2015 remand.  Stegall v. West, 11 Vet. App. 268 (1998).

The representative contends that the RO failed to take appropriate steps to obtain complete treatment records from Dr. CHL in Mobile, Alabama, to include requesting from the Veteran a completed and updated 21-4142, Authorization and Consent to release information to the VA, as directed by the November 2015 Board remand.  On April 4, 2016, the RO mailed a letter with an authorization to disclose information form the Veteran and his representative, specifically requesting the information for Dr. CHL in Mobile, Alabama.  The authorization to disclose form with Dr. CHL's information was never returned to the RO.  While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  Accordingly, there has been substantial compliance with the November 2015 remand.  Stegall, 11 Vet. App. at 271.

The Board finds that the RO has substantially complied with the remand orders related to the lumbar spine disability claim.

No other relevant records have been identified and are outstanding.  As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was provided with VA examinations in February 1998, November 1998, February 2000, January 2001, February 2010, and January 2015.  The examinations were adequate.  The examiners reviewed the medical evidence of record in conjunction with the examination, and conducted thorough medical examinations of the Veteran.  The Veteran's pertinent symptomatology was recorded sufficiently to accurately adjudicate the claim.  Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient base upon which to reach a decision on the Veteran's claim.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II.  Increased Rating for Lumbar Spine Disability

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1. 

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.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  Importantly, the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14. 

In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016).  Further, pain that does not result in additional functional loss does not warrant a higher rating.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment).

Here, through a December 1997 increased rating claim, the Veteran has averred that his service-connected lumbar spine disability is more severe than his current evaluation would indicate. 

VA evaluates spine disabilities under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as follows:

 General Rating Formula for Diseases and Injuries of the Spine
With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:

Unfavorable ankylosis of the entire spine:  100 percent.

Unfavorable ankylosis of the entire thoracolumbar spine:  50 percent.

Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine:  40 percent.

Note (1) states that VA should evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. 

Note (5) states that for VA compensation purposes, "unfavorable ankylosis" is a condition in which the entire cervical spine, thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one 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 coastal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6) states that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  In addition, IVDS (preoperatively or postoperatively) may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25  (combined ratings table).

Further, the normal findings for range of motion of the thoracolumbar spine are forward flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and lateral rotation, right and left, to 30 degrees.  38 C.F.R. § 4.71a, Plate V.

The Veteran's back disability may also be rated based on IVDS.

Formula for Rating IVDS Based on Incapacitating Episodes:

With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months:  60 percent.

With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months:  40 percent.

Note (1), states that 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.

38 C.F.R. § 4.71a, Diagnostic Codes 5239, 5243 (2016).

In order to warrant a rating in excess of 40 percent, the service connected back disability must be productive of at least unfavorable ankylosis of the entire thoracolumbar spine and/or result in incapacitating episodes as defined by regulation having a total duration of at least 6 weeks during the past 12 months.

As stated above, the Veteran filed a claim for an increased evaluation in December 1997.  On September 26, 2003, the VA amended the rating criteria for diseases and injuries of the spine, promulgating a general formula for diseases and injuries of the spine, new diagnostic codes and names, and incorporating the 2002 changes to the criteria for IVDS.  68 Fed. Reg. 51,454 (August 27, 2003) and 69 Fe. Reg. 32449 (June 10, 2004)(technical corrections)(codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243(2016)).

The Board is required to consider the claim in light of both the former and revised schedular criteria in order to determine whether an increased rating is warranted for that disability.  If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation.  38 U.S.C.A. § 5110(g).  Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation.

Under the rating criteria effective prior to September 26, 2003, lumbar spine disorders were evaluated under The Spine rating system as follows:

Spine, complete bony fixation (ankylosis) of:
Unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) of without other joint involvement (Bechterew type):  100 percent.

Favorable angle:  60 percent.

Ankylosis of the lumbar spine
Unfavorable:  50 percent.
Favorable:  40 percent.

Limitation of motion of the lumbar spine
Severe:  40 percent.

IVDS:
Evaluate IVDS (preoperative or postoperative) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.

With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months:  60 percent.

With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months:  40 percent.

38 C.F.R. § 4.71a, Diagnostic Codes 5286, 5289, 5292, 5293  (2003).

Upon review of the medical evidence of record, the Veteran has not had any incapacitating episodes throughout the life of this claim, and therefore does not warrant a rating increase in excess of 40 percent under either the old or the new schedular ratings under the Formula for Rating IVDS based on incapacitating episodes.

Turning to the General Rating Formula for Diseases and Injuries of the Spine, none of the VA examination reports indicate that the Veteran has unfavorable ankylosis of the thoracolumbar spine or the entire spine.  Therefore, the Veteran does not warrant a rating increase in excess of 40 percent under either the old or the new schedular ratings.

The Court of Appeal for Veterans Claims 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.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  However, the rating requirements in this case do not rely on pain on the joint, but on mobility of the joint.  As it stands, the Veteran has reached the maximum rating that considers limitation of motion at 40 percent.  A 50 percent rating requires unfavorable ankylosis of the spine, which Note (5) defines as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one 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 coastal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  None of the VA examiners found ankylosis in their examinations of the Veteran and none of the Veteran's treatment records mention any findings of ankylosis.  The Veteran has not alleged the presence of symptomology equivalent to ankylosis.  

Based on the review of the medical evidence, the Board finds the preponderance of the evidence is against the Veteran's claim for a rating increase in excess of 40 percent.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b).
III.  Contentions by the Veteran's Representative


ORDER

An increased rating in excess of 40 percent for post-operative residuals of fusion of L5-S1, with spondylolisthesis at L5-S1 and degenerative joint disease at L3-L4, is denied.


REMAND

Unfortunately, another remand is required in this case for the remain issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration.

As to the claim for service connection for radiculopathy of the lower left extremity, the Board finds the March 2017 VA examination inadequate.

In the November 2015 Board decision, the Board instructed the RO to schedule the Veteran for a VA peripheral nerves examination.  The examiner was instructed to conduct a thorough examination, to include all necessary testing to assess the Veteran for radiculopathy of the left leg.  The Board instructed the VA examiner to conduct a new EMG exam in response to an October 2014 NCS exam from a private physician that noted an EMG was needed to evaluate for possible lumbosacral radiculopathy.  However, in the March 2017 VA examination, the examiner noted that EMG studies are usually rarely required to diagnose specific peripheral nerve conditions in the appropriate clinical setting.  If EMG studies are in the medical record and reflect the Veteran's current condition, repeat studies are not indicated.  The examiner cited to the October 2014 NCS exam as an EMG exam and did not conduct a new EMG exam.

The Board also instructed the examiner to clearly state whether any portion of the Veteran's left lower extremity neurological complaints or symptoms are attributable to radiculopathy associated with the service-connected lumbosacral spine disability.  To the extent possible, the examiner had to differentiate the manifestations of radiculopathy from any comorbid neurological condition.  In the examination report, the examiner quoted the analysis and conclusion of the January 2015 VA examiner and stated he concurred with the opinion and did not provide a rationale for his concurrence.  The examiner did not address the Board's question differentiating the manifestations of radiculopathy from any comorbid neurological condition.

As to the claim for TDIU, the Board finds a new VA examination is required to adequately assess the impact of all of the Veteran's service-connected disabilities on the Veteran's ability to function in work-related tasks.

The Board instructed the examiner to comment on the impact of the service-connected disabilities, individually and in combination (back and lower extremities), on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.).  Since the date of the Board's remand, the Veteran has been service connected for additional disabilities, including coronary artery disease and prostate cancer.  Therefore, a new opinion is needed to include these additional disabilities.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim for radiculopathy of the lower left extremity.

2.  Schedule the Veteran for a VA examination with an appropriately qualified examiner.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner.

The examiner must conduct a thorough examination, to include all necessary testing, specifically a EMG test, to assess the Veteran for radiculopathy of the left leg.  The examiner must clearly state whether it is as likely as not (50 percent or greater probability) that the Veteran's left lower extremity neurological complaints or symptoms are attributable to radiculopathy associated with the service connected lumbosacral spine disability.  To the extent possible, the examiner should differentiate the manifestations of radiculopathy from any comorbid neurological condition.

The examiner must comment on the impact of the service connected disabilities (back, lower extremities, coronary artery disease, prostate cancer, erectile dysfunction), individually and in combination, on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.).

The rationale for all opinions expressed must also be provided.  If the examiner is unable to provide the required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

3.  Upon completion of the above, readjudicate the issues on appeal, with consideration of all evidence of record.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board.

The appellant and his representative have right to submit additional evidence and argument on the matter or 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 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).




______________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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