judge_norm: JOHN E ORMOND, JR

condition: back

text:
Citation Nr: 1111000
Decision Date: 03/21/11    Archive Date: 04/05/11

DOCKET NO.  07-29 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain with degenerative disc disease prior to June 16, 2008, and in excess of 20 percent thereafter.

2.  Entitlement to an initial compensable disability rating for service-connected meralgia paresthetica of the left lower extremity.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

S. M. Kreitlow

INTRODUCTION

The Veteran had active military service from July 1966 to July 1968 and August 1969 to August 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2005 and May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  The Board notes that service connection for low back strain was originally awarded in a December 1981 rating decision and evaluated as zero percent disabling.  The Veteran filed a claim for an increased disability rating in October 2004.  By rating decision issued in May 2005, a 10 percent disability rating was awarded for lumbar strain with degenerative disc disease effective April 12, 2004.  The Veteran disagreed with the assignment of only a 10 percent disability rating and perfected an appeal to the Board.  Subsequently, in an August 2008 rating decision, a disability rating of 20 percent was awarded effective June 16, 2008, resulting in a staged rating for the Veteran's service-connected low back disability.

In addition, the Board notes that service connection for meralgia paresthetica of the left lower extremity was granted in the May 2005 rating decision and was evaluated as zero percent disabling.  The Veteran disagreed with the assignment of a noncompensable disability rating and has perfected an appeal to the Board.

The Board notes that a Statement of the Case was issued in June 2009 on the issues of increased disability ratings for service-connected upper gastrointestinal bleed and anxiety disorder.  In December 2010, the Veteran was contacted seeking clarification of the issues on appeal.  The Veteran stated that he did not want to further pursue these issues and that his VA Form 9 accurately restricted and designated the issues on appeal as listed on the first page of this decision.

The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in December 2010.  A copy of the transcript of this hearing has been associated with the claims file.

FINDINGS OF FACT

1.  Resolving reasonable doubt in the Veteran's favor, his lumbar strain with degenerative disc disease was productive of limitation of forward flexion of the thoracolumbar spine of at least 60 degrees and muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis prior to June 16, 2008.

2.  The Veteran's lumbar strain with degenerative disc disease has not been productive of forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

3.  The Veteran's meralgia paresthetica of the left lower extremity is productive of mild incomplete paralysis of the anterior crural nerve (femoral).

CONCLUSIONS OF LAW

1.  Prior to June 16, 2008, the criteria for a disability rating of 20 percent for lumbar strain with degenerative disc disease are met.  38 U.S.C.A. �� 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5235 through 5243 (2010).

2.  The criteria for a disability rating in excess of 20 percent for lumber strain with degenerative disc disease are not met.  38 U.S.C.A. �� 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5235 through 5243 (2010).

3.  The criteria for a disability rating of 10 percent for meralgia paresthetica of the left lower extremity are met.  38 U.S.C.A. �� 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.159, 4.1, 4.2, 4.3, 4.7 and 4.124a, Diagnostic Code 8526 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance Requirements

38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits.

Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide.  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. � 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. � 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim.  Vazquez-Flores, 22 Vet. App. 37 (2008).  VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation.  Id.

It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008).  Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. � 5103(a) need not be veteran specific."  In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication."  Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments."

In this case, notice was initially sent to the Veteran in November 2004, prior to the initial adjudication of his claim for an increased disability rating for service-connected lumbar strain with degenerative disc disease, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  In May 2008, he was provided notice pursuant to the decision in Vazquez-Flores.  In addition, he was advised that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life.  Id., see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).  He was also advised on what evidence and/or information is necessary to establish entitlement to an effective date should benefits be granted.

The Board acknowledges that the notice letter sent to the Veteran in November 2004 did not fully meet the requirements set forth in Vazquez-Flores and is not sufficient as to content and timing.  However, content-compliant notice was provided to the Veteran in May 2008, and his claim was subsequently adjudicated in March 2009, June 2010 and December 2010.  Thus, the Board finds that any deficiencies as to timing and content have been cured.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (defects in timing of notice may be cured by affording the Veteran appropriate notice and subsequent adjudication).  The Board may therefore proceed to adjudicate the Veteran's claim for an increased disability rating for the service-connected lumbar strain with degenerative disc disease without prejudice to him.

In addition, the Veteran's claim for a compensable disability rating for meralgia paresthetica of the left lower extremity arises from his disagreement with the initial evaluation following the grant of service connection.  Courts have held that, once service connection is granted, the claim is substantiated and additional notice is not required.  Thus any defect in the notice is not prejudicial to the Veteran.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA.  38 U.S.C.A. � 5103A(b)(1).  All efforts have been made to obtain relevant, identified and available evidence.

The duty to assist includes providing the Veteran a thorough and contemporaneous examination.  Green v. Derwinski, 1 Vet. App. 121 (1991).  The Veteran was afforded VA examinations in January 2005, June 2008, and September 2010.  Significantly, the Board observes that he does not report that the claimed conditions have worsened since he was last examined, and thus a remand is not required solely due to the passage of time.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. � 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran.  Additional efforts to assist or notify him would serve no useful purpose.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Analysis

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. � 1155.  Separate diagnostic codes identify the various disabilities.  Id.  Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. �� 4.1 and 4.2.

It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. � 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. � 4.3.  If there is a question as to which evaluation to apply to the veteran's disability, 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.

In evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. �� 4.40 and 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. � 4.40.  A part that becomes painful on use must be regarded as seriously disabled.  Id.; see also DeLuca.  As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  38 C.F.R. � 4.45(f).

The Board has reviewed all the evidence of record, which consists of the Veteran's statements and testimony; the reports of the VA examinations conducted in January 2005, June 2008 and September 2010; and VA treatment records for April 2004 through May 2010.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in the case.  The Board will summarize the relevant evidence where appropriate.

Lumbar Strain with Degenerative Disc Disease

In a December 1981 rating decision, service connection was granted for lumbar strain, which was evaluated as zero percent disabling.  In October 2004, VA received the Veteran's claim seeking an increased disability rating for his service-connected low back disability.  By rating decision issued in May 2005, the RO granted an increased disability rating of 10 percent effective April 12, 2004, and recharacterized the Veteran's disability as lumbar strain with degenerative disc disease pursuant to the results of a January 2005 VA examination.  The Veteran disagreed with the assignment of only a 10 percent disability rating for his service-connected low back disability.  The Board notes that during the pendency of his appeal, a disability rating of 20 percent was awarded effective June 16, 2008, based upon the results of a VA examination conducted on that date.  The Veteran has continued his disagreement with the assigned disability ratings.

Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. � 4.71a.  When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code.  38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

In relevant part, the General Rating Formula for Diseases and Injuries of the Spine provides that, 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, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine; and a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine.  A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height.  See 38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

The rating criteria define normal range of motion for the various spinal segments 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 flexions are zero to 30 degrees, and left and right lateral rotations 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 of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2).

The fact that the criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule.  See 68 Fed. Reg. 51,455 (Aug. 27, 2003).  In the present case, the Board notes that the Veteran has denied and examination has failed to demonstrate that he has any neurologic deficit (e.g., radiculopathy or sciatica) resulting from his service-connected low back disability.  See October 2004 VA treatment note regarding EMG Consult and VA examination reports.  Consequently, separate evaluation is not warranted for neurologic manifestations.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis 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.  See 38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.

In Excess of 10 Percent Prior to June 16, 2008

The Board notes that the RO assigned an effective date of the award of 10 percent of April 12, 2004, based upon a finding that this was when the VA treatment records showed a worsening in the Veteran's service-connected low back disability.  The April 2004 VA treatment notes are the earliest relevant medical records in the claims file.  Thus, the Board will consider evidence from that date forward in determining whether a higher disability rating is warranted.

After considering all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected lumbar strain with degenerative disc disease is productive of symptoms consistent with limitation of forward flexion of the thoracolumbar spine of at least 60 degrees and/or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.

In June 2004, the Veteran underwent a physical therapy consult at VA for evaluation of his back.  It was noted that x-rays of the lumbar spine demonstrated moderate degenerative changes at multiple levels.  Physical examination showed moderate increased lumbar lordosis; however, active range of motion was within normal limits.  Tenderness to palpation was noted at the L1 to L5 vertebral levels, the left gluteal muscles, the sacroiliac joints and the lumbar paraspinal muscles.  A November 2004 VA treatment note indicates the Veteran had moderate discomfort with twisting motion and spasms at the left paraspinous muscle in the lumbar region on physical examination.

At the VA examination conducted in January 2005, the Veteran complained of low back pain.  He reported that he can do everything at home and at work, but that if he does repetitive movement he gets increasing back pain.  He reported that he can walk as far as he wants to.  At work, he details cars and cleans them and is therefore in an out of cars all day.  He said he works eight hours a day without problem other than soreness in his back.  He had not missed any time from work.  He stated that he does not lift anything greater than 5 to 10 pounds as lifting greater than that causes an increase in back pain.  He reported having pain with soreness and stiffness every morning when he gets up, and he stretches and this helps relieve it somewhat.  He takes no medication for this.  He uses no canes, crutches, or assistive devices.  He felt he is very stable.  He stated that he can eat, bathe, groom, toilet and dress, including chopping wood at home.  He reported having good strength and muscle tone.  He denied bowel or bladder dysfunction.

Physical examination demonstrated the Veteran had range of motion of the thoracolumbar spine of 85 degrees of forward flexion, 20 degrees of extension, 30 degrees of lateral flexion bilaterally, and lateral rotation of 60 degrees, all with very minimal pain.  There was exquisite tenderness to palpation about the left sacroiliac joints and minimal tenderness over the erector spinae group and the spine itself in the lumbar region; however there was no muscle spasm seen.  Veteran had 5/5 strength of her dorsiflexion, plantar flexion, inversion, eversion, knee flexion/extension, and hip flexion/extension against strong resistance.  He had negative straight leg raises, negative crossover, and posterior Patrick-Fabere on the left.  He had downward toes, no clonus, and normal reflexes at the knee jerk and Achilles, equal, 2+ bilaterally. The assessment was chronic lumbar strain superimposed on degenerative disc disease confirmed by x-rays.  Electromyography was noted to be negative for radiculopathy.  The examiner further stated that, it is within reason to believe that the Veteran loses between 20 and 30 percent of his functional capacity (i.e., range of motion, strength, coordination, and fatigability) associated with pain with repetitive movement flares, which he reports having when he lifts anything greater than 5 to 10 pounds and daily with activity.

VA treatment note for May 2005 indicates the Veteran was being seen in primary care for follow-up but with a new physician.  It was noted that the Veteran mostly talked about his back and thigh numbness.  Physical examination demonstrated patella reflexes were 2+ bilaterally and motor strength in the left lower extremity was 5/5.  The Veteran was able to squat and rise to a standing position without difficulty and to heel and toe walk.  Truncal flexion was limited to 70 degrees, extension to 10 degrees, and side to side twisting to 30 degrees.  The assessment was low back pain with moderate degenerative changes multilevel in the lumbar spine.

This evidence demonstrates that, at least some time during the period prior to June 16, 2008, the Veteran had muscles spasms and increased lumbar lordosis (i.e., an abnormal spinal contour).  Moreover, although the VA examination showed forward flexion limited only to 85 degrees, the examiner stated the Veteran would have additional limitation of functioning of up to 30 percent with repetitive activity flare-ups due to pain.  When considering the increased limitation with flare-ups, the Board finds that the Veteran's limitation of forward flexion of the thoracolumbar spine would be consistent with at least 60 degrees.  The evidence, however, does not consistently show that throughout the entire period the Veteran had muscle spasms or increased lumbar lordosis (e.g., neither was noted on VA examination), nor does it indicate the Veteran's additional functional impairment due to repetitive activity was consistently at least 30 percent.  The Veteran, on the other hand, has continuously reported that his employment as a car detailer increases the severity of his back pain.  Thus, the Board finds that there is sufficient reasonable doubt that the Veteran's low back disability picture has been consistent over this period.  Resolving reasonable doubt in the Veteran's favor, therefore, the Board finds that the criteria for a disability rating of 20 percent has been met, and the Veteran's appeal should be granted to that extent.

In Excess of 20 Percent

The Board finds, however, that the evidence fails to establish that the criteria for a 40 percent disability rating have been met at any time during the appeal period.  The medical evidence fails to establish that the Veteran's service-connected lumbar strain is productive of forward flexion of 30 degrees or less.  At most, the forward flexion of the Veteran's thoracolumbar spine has been limited to 60 degrees (see June 2008 VA examination).  Furthermore, the evidence fails to establish that the Veteran has favorable ankylosis of the thoracolumbar spine.  Even with consideration of any additional functional loss on repetitive activity, the evidence does not support a finding that the Veteran's disability picture is consistent with these criteria for a 40 percent disability rating.

The Board notes that the VA treatment records show the Veteran has also been diagnosed to have osteoporosis and scoliosis of the mid-thoracic spine with pain by x-ray and bone density scan in May 2005, which is not a service-connected disability.  The Veteran's complaints of back pain, therefore, appear to relate to more than just his service-connected lumbar strain with degenerative disc disease.  It is not clear, however, that either the Veteran or an examiner could separate the signs and symptoms related to the lumbar spine disability and those related to the thoracic spine osteoporosis.  Where it is not possible to distinguish the effects of a nonservice- connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Thus, in evaluating the Veteran's service-connected lumbar strain with degenerative disc disease, the Board has considered the reasonable doubt doctrine and attributed all symptoms to the Veteran's service-connected disability.

Consequently, the Board finds that the preponderance of the evidence supports a finding that the Veteran's service-connected lumbar strain with degenerative disc disease warrants a 20 percent disability rating, but no higher, during the entire appeal period.

Meralgia Paresthetica of the Left Lower Extremity

Service connection was granted in the May 2005 rating decision for meralgia paresthetica of the left lower extremity.  The RO evaluated this now service-connected disability as zero percent disabling under Diagnostic Code 8728, which evaluates disability due to paralysis of the obturator nerve.

The Board notes that there is not a diagnostic code specifically for meralgia paresthetica.  When an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. � 4.20.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  38 C.F.R. � 4.27.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

After reviewing the evidence and the Diagnostic Codes applicable to evaluating nerve disabilities of the thigh area, the Board finds that the Veteran's service-connected meralgia paresthetica of the left lower extremity would be more appropriately evaluated under Diagnostic Code 8526 for paralysis of the anterior crural nerve (femoral).  The Board notes that the obturator nerve is in the appropriate location but serves the skin and superficial muscles of the thigh while the Veteran's complaints of numbness and pain are deeper in the thigh.  Furthermore, the medical evidence of record shows that meralgia paresthetica is not a definitive diagnosis of the Veteran's nerve problem in the left lower extremity as his symptoms are described as deep and more severe than those typical with this condition.  (See October 2004 note of EMG Consult.)  Finally, the September 2010 VA examination demonstrated that the Veteran had dullness of sensation along the anterior thigh associated with the femoral cutaneous nerve.  The Board finds that this nerve is the same as the anterior crural nerve (femoral) evaluated under Diagnostic Code 8526.  Consequently, the Board finds that Diagnostic Code 8526 is more appropriate to evaluate the Veteran's service-connected meralgia paresthetica of the left lower extremity.

Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis.  A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles.  38 C.F.R. � 4.124a, Diagnostic Code 8526.  The words "mild," "moderate," and "severe" are not defined in Diagnostic Code 8526 except as they relate to "complete" paralysis, which is defined as paralysis of the quadriceps extensor muscles.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just."  38 C.F.R. � 4.6.

After considering all the evidence, the Board finds that the Veteran's meralgia paresthetica of the left lower extremity is productive of no more than mild incomplete paralysis of the anterior crural nerve (femoral).  The Veteran's symptoms are mostly subjective complaints of pain, numbness and weakness in the thigh.  Evaluation of the nerves by electromyogram in October 2004 was normal.  Thus, the diagnosis of meralgia paresthetica was based upon the Veteran's clinical picture, although it was noted that his symptoms as described are deeper and more severe than those typically seen with this condition.  Furthermore, VA examination has failed to show any significant objective signs of neurologic deficit of the anterior crural nerve (femoral).  Neurological examinations in January 2005 and June 2008 were within normal limits meaning there were no findings of muscle weakness or atrophy or decreased sensation or reflexes in the left lower extremity.  It was only at the September 2005 VA examination that dullness of sensation was noted to be present along the anterior thigh associated with the femoral cutaneous nerve; however, the remainder of the examination was within normal limits.  Furthermore, the VA examiner stated that the Veteran would not have any additional weakness, fatigability or loss of coordination due to his meralgia paresthetica.  Consequently, the preponderance of the evidence fails to support a finding that the Veteran's meralgia paresthetica of the left lower extremity is productive of a disability picture consistent with moderate incomplete paralysis of the anterior crural nerve (femoral) as his symptoms are mostly subjective with minimal objective findings of neurologic deficit.  Rather, the Board finds that the Veteran's disability picture is more properly described as mild incomplete paralysis of the anterior crural nerve (femoral).  Consequently, the Board concludes that the preponderance of the evidence is in favor of assigning a 10 percent disability rating, but no higher, for the Veteran's service-connected meralgia paresthetica of the left lower extremity.

Final Considerations

Extraschedular Consideration

The Board must consider whether referral for consideration of an extraschedular disability rating is warranted under 38 C.F.R. � 3.321(b).  It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability.  38 C.F.R. � 3.321(a).  In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. � 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  38 C.F.R. � 3.321(b).  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  Id.  The Veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. �  4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).

Loss of industrial capacity is the principal factor in assigning schedular disability ratings.  See 38 C.F.R. �� 3.321(a), 4.1.  Indeed, 38 C.F.R. � 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate.  In other words, whether the disability picture presented in the record is adequately contemplated by the rating schedule.  In doing so, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In the present case, the Board finds that the evidence does not establish that the Veteran's disability picture for either his service-connected lumbar strain with degenerative disc disease or meralgia paresthetica of the left lower extremity is so exceptional as to render application of the rating schedule inadequate.  Rather, the established criteria clearly adequately contemplate each disability.

With regard to the Veteran's service-connected lumbar strain with degenerative disc disease, he complains mostly of pain in his low back with some stiffness and soreness, especially in the morning and with repetitive activity, which affects his ability to function, especially at his job as a car detailer.  The Board finds, however, that the Veteran's symptoms are not out of the ordinary for his disability and that the VA rating schedule contemplates such symptoms.  Furthermore, the Board notes that additional functional impairment has been contemplated in evaluating the Veteran's service-connected lumbar strain with degenerative disc disease.  The evidence does not show, nor does the Veteran contend, that he has symptoms that are unusual or extraordinary such that they are not contemplated by the establish rating criteria.  Furthermore, although the Veteran complains that his service-connected low back disability affects his ability to obtain better employment or to maintain his current employment, such is contemplated by the VA rating schedule as it contemplates loss of industrial capacity and the assignment of a disability rating is acknowledgement that there is some industrial impairment present.  The Veteran has not, however, indicated (nor does the evidence show) that his industrial impairment is that which is not contemplated by the rating schedule.  Consequently, the Board finds that the VA rating schedule is adequate for rating the Veteran's service-connected low back disability and, therefore, referral for consideration of an extraschedular disability rating is not warranted.

With regards to the veteran's service-connected meralgia paresthetica of the left lower extremity, of pain, numbness and weakness in the left thigh area with minimal of neurologic deficit.  The Board finds the symptoms are not out of the ordinary for this disability and that the VA rating schedule contemplates such symptoms.  Furthermore, the Board notes that additional functional impairment has been contemplated in evaluating the Veteran's service-connected meralgia paresthetica of the left lower extremity.  The evidence does not show, nor does the Veteran contend, that he has symptoms that are unusual or extraordinary such that they are not contemplated by the establish rating criteria.  Furthermore, although the Veteran complains that this service-connected disability affects his ability to obtain better employment or to maintain his current employment, such is contemplated by the VA rating schedule as it contemplates loss of industrial capacity and the assignment of a disability rating is acknowledgement that there is some industrial impairment present.  The Veteran has not, however, indicated (nor does the evidence show) that his industrial impairment is that which is not contemplated by the rating schedule.  Consequently, the Board finds that the VA rating schedule is adequate for rating the Veteran's service-connected meralgia paresthetica of the left lower extremity; and, therefore, referral for consideration of an extraschedular disability rating is not warranted.

TDIU

Finally, the Board notes that the Veteran has made allegations about his ability to obtain and sustain a substantial gainful occupation as a result of his service-connected low back disability, thereby alleging entitlement to a total disability rating based upon individual unemployability as a result of service-connected disability (TDIU).  The Court of Appeals for Veterans Claims (Court) has held that TDIU is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. � 4.16.

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. � 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

In rating decision issued in May 2005, the RO denied a TDIU.  The Veteran did not appeal that denial.  Nevertheless, the Board finds that the Veteran has been gainfully employed throughout the appeal period.  The Board acknowledges that the VA treatment records indicate the Veteran lost a job at the end of June 2004; however, they also show that he started a new job less than a month later.  Thus, the Veteran was not unemployed for any significant period of time, and his ability to find new employment, which was in the same field, within a short amount of time speaks against finding that he is unable to obtain employment.  The Board also acknowledges that the Veteran currently reports he only works three days a week as a detailer; however, his report of the hours he works is very inconsistent.  He has reported he works 8 hours a day (see January 2005 VA examination report), 10 hours a day (see May 2005, May 2008 and August 2008 statements) and sometimes 12 hours or more (see hearing transcript, page 6).  Furthermore, the Veteran's report of how much work he has missed is inconsistent.  In June 2010, he reported missing approximately 80 hours of work that year due to his service-connected disabilities; however, only three months later at a VA examination conducted in September 2010, he reported having only missed one day of work.  Furthermore, although the Veteran has stated that he is unable to work more because of his service-connected disabilities, he conversely testified at his Board hearing in December 2010 that he is restricted from working more than three days a week because he is receiving Social Security retirement pay.  (See hearing transcript, pages 14-15.)  Finally, the Board notes that he has been able to successfully maintain his employment despite his disabilities and the prolonged standing, bending and twisting required by his position. Thus, the Board finds that entitlement to a TDIU is not warranted as the evidence of record fails to show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities.

ORDER

Entitlement to a disability rating of 20 percent for service-connected lumbar strain with degenerative disc disease is granted prior to June 16, 2008, subject to controlling regulations governing the payment of monetary benefits.

Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain with degenerative disc disease is denied.

Entitlement to a disability rating of 10 percent for service-connected meralgia paresthetica of the left lower extremity is granted, subject to controlling regulations governing the payment of monetary benefits.

____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: C TRUEBA

disposition: denied

benefit: healthcare

text:
Citation Nr: 1113000
Decision Date: 04/01/11    Archive Date: 04/13/11

DOCKET NO.  10-00 237	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs South Central VA Health Care Network

THE ISSUE

Entitlement to payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at the Touro Infirmary Emergency Department (Touro ER) on September 6, 2008.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

C. Fields, Associate Counsel
INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision issued by the Department of Veterans Affairs (VA) South Central VA Health Care Network (HCN).

As the Veteran's claims file has not been associated with the medical appeals file, the Board is unable to verify her periods of active duty service.  However, the VA HCN determined that the Veteran had honorable active service from February 1980 to December 1980, and from August 1990 to September 1991.  The Veteran does not dispute these dates, and there is no other indication that such determination is erroneous.  As such, for the purposes of the current appeal, the Board finds that the Veteran had qualifying active duty service.

FINDINGS OF FACT

1.  The condition for which the Veteran was treated was not service-connected, she is not totally and permanently disabled due to a service-connected disability, and she was not enrolled in a VA vocational rehabilitation program.

2.  The Veteran was enrolled in the VA healthcare system at the time the medical treatment was provided, had received VA medical services within the preceding 24 months, is financially liable for such treatment, and had no coverage under a health plan contract for payment or reimbursement of the private hospital.

3.  The claim for payment or reimbursement of medical expenses incurred was not received within 90 days of the date the Veteran was discharged from the private hospital and/or had unsuccessfully exhausted all claims for third party payment.

4.  The medical expenses for treatment at the Touro ER were not incurred for a medical emergency of such nature that a reasonable person would believe that delay in seeking treatment would be hazardous to life or health.

5.  VA facilities were feasibly available, and an attempt to use them before seeking private treatment would have been reasonable.

CONCLUSION OF LAW

The criteria for payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at the Touro ER on September 6, 2008, have not been met.  38 U.S.C.A. �� 1725, 1728, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.159, 17.120, 17.121, 17.1000-17.1008 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In general, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  However, as the claim in this case is governed by 38 U.S.C.A. Chapter 17, the provisions of the VCAA do not apply.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002).

Nevertheless, the Board notes that the Veteran was advised in July 2009, prior to the initial unfavorable administrative decision, of the responsibilities of the Veteran and VA in obtaining evidence to support her claim.  See Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  The Veteran has also been made aware of the requirements to substantiate her claim.  See administrative decision, statement of the case.  The Board notes that the undersigned VLJ did not explain the bases of the prior determinations, or suggest the submission of evidence that may have been overlooked, during the Travel Board hearing.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing the requirements of 38 C.F.R. 3.103(c)(2)).  However, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the Board hearing.  Rather, the Veteran and her representative have demonstrated actual knowledge of the requirements to substantiate her claim by arguing that her condition was of an emergent nature and that a VA facility was not available.  See notice of disagreement, substantive appeal, hearing transcript.  Further, VA has obtained the full treatment records from Touro ER, as well as a medical opinion as to whether the Veteran's condition was of an emergent nature.

As such, the Veteran has had a full and fair opportunity to present arguments and evidence in support of her claim, and there is no indication of any outstanding medical evidence that is necessary for a fair adjudication of the claim.  To the extent that the duties to notify and assist apply in this case, the Board finds that VA has satisfied such duties, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings.  In particular, the Board finds that VA has substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and no prejudice has resulted from any possible defects.  Therefore, the Veteran will not be prejudiced by a decision on the merits of her claim.

Under 38 U.S.C.A. � 1728 and implementing regulations, reimbursement of unauthorized medical expenses is available only where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is participating in a vocational rehabilitation program as defined in 38 U.S.C.A. � 3101(9), and (ii) is medically determined to have been in need of such care or services; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or to obtain prior VA authorization for the required services would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  38 U.S.C.A. � 1728(a); 38 C.F.R. � 17.120.

Under 38 U.S.C.A. � 1725 and implementing regulations, the reasonable value of emergency treatment furnished for a nonservice-connected condition in a non-VA facility will be reimbursed where the veteran is an active VA healthcare participant (enrolled in the annual patient enrollment system and in receipt of VA hospital, nursing home, or domiciliary care under such system within the preceding 24 months) and is personally liable for such emergency treatment (financially liable to the provider and not eligible for reimbursement under 38 U.S.C.A. � 1728).  For this purpose, "emergency treatment" is defined as medical care or services furnished when (1) VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not have been reasonable, (2) there is a medical emergency of such nature that a prudent lay person would reasonably expect that a delay in seeking immediate medical attention would be hazardous to life or health, and (3) any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility.  38 U.S.C.A. � 1725; 38 C.F.R. � 17.1002.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt shall be resolved in favor of the claimant.  38 U.S.C.A. � 5107.

The Board first notes that the Veteran does not meet the basic eligibility criteria under 38 U.S.C.A. � 1728.  Specifically, she is only service-connected for chronic sinusitis, parasinusitis, rated as 10 percent disabling, and she has not been adjudicated permanently and totally disabled.  There is no evidence that the emergency treatment at issue was provided for a sinus condition, or for a condition that was aggravating the service-connected disability.  Further, there is no indication that the Veteran was participating in a VA vocational rehabilitation program.  As such, she does not meet these basic eligibility criteria. See also 38 C.F.R. � 17.120.  However, the Veteran appears to meet the basic eligibility criteria under 38 U.S.C.A. � 1725, for treatment of a nonservice-connected condition, and the VA HCN did not find otherwise.  In particular, the Veteran has reported the local VA facility as her primary care provider, and she appears to have received VA recent treatment.  There is no indication of any insurance coverage, and she is not eligible for payment under 38 U.S.C.A. � 1728.  See also 38 C.F.R. � 17.1002.

Although not discussed by the VA HCN, the Board notes that it does not appear that the claim for payment or reimbursement of medical expenses was timely filed.  As pertinent to this case, a claim for payment or reimbursement under 38 U.S.C.A. � 1725 must be filed within 90 days after the latest of (1) the date the veteran was discharged from the facility that furnished the emergency treatment, or (2) the date the veteran finally exhausted action to obtain payment or reimbursement for payment from a third party.  See 38 C.F.R. � 17.1004(d).  Here, the statement of the case indicates that the claim was received on May 29, 2009, and the date-stamp on the records from Touro ER indicates that they were received on June 24, 2009.  Both of these dates are well after 90 days from the Veteran's date of discharge from Touro ER in September 2008, and there is no indication that claims were made to any third party.  Although a much longer time limit for filing a claim applies under 38 U.S.C.A. � 1728, as set forth in 38 C.F.R. � 17.126, the Veteran does not meet the basic eligibility requirements under 38 U.S.C.A. � 1728, as discussed above.

Assuming that the claim was timely filed, payment or reimbursement under both 38 U.S.C.A. �� 1728 and 1725 is contingent upon a showing that (1) the expenses were incurred for a medical emergency of such nature that a delay in seeking treatment would be hazardous to life or health, and (2) a VA or other federal facility was not feasibly available and an attempt to use them beforehand would not have been reasonable.  See 38 C.F.R. �� 17.120(b)-(c), 17.1002(b)-(d), 17.1003.

The Veteran seeks payment or reimbursement of expenses in the amount of $2,565.65 that were incurred for medical treatment at the Touro ER on September 6, 2008.  The South Central VA HCN denied the claim based on a finding that VA facilities were available.  See administrative decision, ruling on motion for reconsideration, statement of the case.  Although the VA HCN did not further explain this determination, the evidence of record includes a VA medical opinion that the Veteran's condition was non-emergent, and she could have waited to seek treatment during regular hours at a VA facility, as discussed below.

The Board will first address the question of whether the Veteran was treated for a qualifying medical emergency.  In this regard, the Veteran states that she is diabetic, and she had dizziness, nausea, stomach cramps, a very bad headache, a very dry mouth, and difficulty swallowing when she sought treatment.  She further states that these symptoms began after she returned to New Orleans following evacuation due to Hurricane Gustav on Thursday or Friday, and they were getting worse on Saturday night, so she went to the emergency room.  She drove herself to the Touro ER in downtown New Orleans because no-one else was at home, and she did not think she could drive any farther due to her symptoms.  The Veteran states that her blood pressure was found to be elevated to 159/90 in the emergency room, and she was given intravenous (IV) fluids for an hour to treat dehydration.  See notice of disagreement, substantive appeal, hearing transcript.

Records from the Touro ER reflect that the Veteran presented for treatment at approximately 9:45 p.m. on September 6, 2008, which was a Saturday.  She reported 0 level of pain on a scale of 10 and stated that she was thirsty with a dry mouth and a chief complaint of weakness.  She further stated that her symptoms started three weeks ago and were constant with gradual onset.  The Veteran also reported feeling light-headed and weak all over.  She reported the severity as mild when seen in the emergency department and a maximum of moderate severity.  The Veteran was noted to have a previous medical history of diabetes.  Initial assessment revealed no acute distress, and blood pressure was measured as 158/85, 141/84, and 159/84.  The emergency physician noted the Veteran to be in mild distress and anxious.  Physical examination revealed no abnormalities, and all tests were interpreted as normal.  Reglan was administered via IV/medication infusion for slight nausea starting at 11:45 pm.  The clinical impression was generalized weakness.  There was no notation of dehydration.  The Veteran was discharged to home at 12:40 a.m. and advised to follow up with her primary care provider and resume taking all home medications.  Upon discharge, she reported pain level of 0 out of 10, blood pressure was 148/69, and her condition was noted to be improved.

The VA HCN forwarded the claim to a physician for an opinion as to whether the Veteran's condition was emergent in nature.  The physician noted that Touro ER treatment records reflect that the Veteran presented with complaints that had begun three weeks ago and was in no acute distress.  Previously, the physician had further noted that the Veteran had a past medical history of diabetes with chief complaints of thirsty, weakness, and dry mouth that started three weeks ago.  The physician indicated that the Veteran's vital signs were within normal limits, and laboratory testing did not indicate any acute process that would indicate a need for emergency treatment.  Accordingly, the physician opined that the Veteran's visit was for a non-emergent condition and could have been made during regular hours to a VA facility.

To qualify for payment or reimbursement, it is not required that the condition for which expenses were incurred actually be proven emergent, from a purely medical standpoint, in order to qualify for payment or reimbursement.  Rather, it need only be demonstrated that initial evaluation and treatment was rendered for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  This standard is considered to be met where a condition manifests by acute symptoms of sufficient severity, including severe pain, that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.  See 38 C.F.R. � 17.1002(b).

As noted above, the VA physician opined that the Veteran's condition was not actually emergent, upon review of the Touro ER treatment records.  Further, the weight of the evidence of record does not reflect that the Veteran manifested acute symptoms of sufficient severity that a prudent layperson with average knowledge would have reasonably expected serious health problems if treatment was delayed.

The Board acknowledges that the Veteran has reported during these proceedings that she had severe pain, including headache and stomach cramps, that began after she returned to New Orleans following evacuation on the Thursday or Friday prior to her emergency treatment.  The Veteran is competent to report the existence and timing of such observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, the Board finds these statements to be not credible, as they are inconsistent with the other evidence of record.  Specifically, treatment records from the Touro ER reflect that the Veteran reported pain at a level of 0 out of 10 at both admission and discharge.  Further, she described the severity of her symptoms (including dry mouth, weakness, and nausea) as mild, with a maximum severity of moderate, and she was noted to be in no acute distress or mild distress.  In addition, the Veteran reported that her symptoms began three weeks previously and were of gradual onset.  These statements made for the purposes of medical treatment have greater probative value because the Veteran had a strong motive to tell the truth in order to receive proper care.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  In contrast, the Veteran's statements during the current proceedings were made after her claim was denied, under circumstances indicating bias.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  Accordingly, the more credible evidence of record reflects that the Veteran's condition on September 6, 2008, was not of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.

With regard to the availability of a VA facility, the Veteran asserts that the New Orleans VA Hospital has not operated on weekends since before Hurricane Katrina in 2005.  She has stated at various times that the closest available VA facility was in Slidell, Louisiana; Biloxi, Mississippi; or Gulfport, Mississippi.  She contends that the nearest VA facility was over two hours away, and she was not even aware of the facilities in Mississippi until after her claim was denied.  See notice of disagreement, substantive appeal, hearing transcript.  The Board notes that, other than the New Orleans facility, the nearest VA Hospital to the Veteran's zip code is in Biloxi, Mississippi, approximately 74.9 miles away, or about a 1.5 to 2 hour drive.  While the Board is sympathetic to the Veteran's arguments, and the difficulties due to Hurricanes Katrina and Gustav, she should attempt to use a VA facility whenever possible in light of the very high costs involved in private care, clearly impacting VA's ability to help veterans overall.  Further, as indicated above, given the degree of the Veteran's symptoms as reflected by the contemporaneous treatment records, it would not have been unreasonable for her to wait until regular business hours to seek VA treatment at the New Orleans facility.

(CONTINUED ON NEXT PAGE)

In summary, the preponderance of the evidence is against entitlement to payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at the Touro ER on September 6, 2008.  As such, the benefit of the doubt doctrine is inapplicable and the claim must be denied.  38 U.S.C.A. � 5107.

ORDER

Payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at the Touro ER on September 6, 2008, is denied.

____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: APRIL MADDOX

condition: shoulder

text: A TDIU is denied

text:
Citation Nr: 1114000
Decision Date: 04/08/11    Archive Date: 04/15/11

DOCKET NO.  09-50 987	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUE

1.  Entitlement to a disability rating greater than 20 percent for left shoulder arthropathy with recurrent dislocations.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel

INTRODUCTION

The Veteran served on active duty with the United States Army from February 1983 to March 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Columbia, South Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which continued a 20 percent disability rating for the Veteran's left shoulder disorder.

The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in October 2010.  A transcript of this proceeding has been associated with the claims file.

The Veteran is unemployed, and has attributed such to his service-connected left shoulder disorder.  The Court of appeals for Veterans Claims (the Court) has held that a claim for increased evaluation includes a claim for TDIU where there is evidence of unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The issue of entitlement to a TDIU has been added to this appeal to reflect the Veteran's allegations and current precedent.

FINDINGS OF FACT

1.  The Veteran is right handed, the left upper extremity is the minor extremity.

2.  The Veteran's left shoulder arthropathy with recurrent dislocations is manifested by painful motion to slightly above shoulder level, guarding of movement, and episodes of dislocation.  There is no ankylosis or loss of the head of the humerus.

3.  The Veteran is not shown to be unable to obtain or retain substantially gainful employment due to his single service connected disability.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating greater than 20 percent for left shoulder arthropathy with recurrent dislocations have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5200 to 5203 (2010).

2.  The criteria for assignment of a TDIU have not been met. 38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. �� 3.340, 4.16 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that his left shoulder disorder is more disabling than indicated by the VA examination report or outpatient treatment records.  He alleges that there is a disproportionate impact on his occupational functioning.  At the October 2010 hearing, he stressed his difficulty in reaching or lifting.  He reported that due to pain, he missed a lot of days of work, and had lost jobs as a result.  He did not allege recent worsening of his disability.

Factual Background

Service treatment records show that the Veteran injured his left should while "horse playing" in March 1984.  Particularly, X-ray examination revealed an anterior dislocation of the left shoulder.  Subsequent service treatment records show complaints regarding the left shoulder dislocation.  Service treatment records also note that the Veteran is right handed.

The Veteran submitted a claim for service connection for a left shoulder disorder in October 1985 and by rating decision dated in February 1986 the RO granted service connection for history of recurrent dislocation of left shoulder, assigning a noncompensable disability rating effective March 21, 1985, the day after the Veteran's discharge from military service.  Subsequently, by rating decision dated in May 1988 the RO increased the rating for the left shoulder to 20 percent effective March 14, 1988, the date of the Veteran's claim for an increased rating.  This 20 percent rating was continued by rating decision dated in February 2003.  In January 2009 the Veteran submitted the current claim for an increased rating for his left shoulder disorder.

Evidence relevant to the current level of severity of the Veteran's left shoulder disorder includes VA treatment records dated through July 2009 and a VA examination date in May 2009.  Specifically, VA treatment records reveal ongoing complaints of left shoulder problems.  In October 2006, the Veteran reported that his left shoulder "pops in and out all the time."  X-ray showed degenerative changes and flattening of the humeral head.  Calcification or a loose body was indicated.  In July 2008, the Veteran reported his shoulders were bothering him; the prior month his complaints had been limited to the hips, legs, and low back.  He reported some problems putting a shirt on over his head.  There was no joint tenderness on the left, but impingement and bottle cap signs were positive.  X-rays in August 2008 also showed a possible loose body or irregularities at the edge of the structure.

An orthopedic consultation was conducted in December 2008.  At that time the Veteran complained of recurrent left shoulder dislocations.  He experienced a feeling of "popping out" of the socket.  He would reduce the dislocations himself without medical care.  The occurrences were most common at night.  Physical examination showed abduction and flexion to 110 degrees each.  There was 1+ laxity of the joint anteriorly and posteriorly.  Impingement signs and apprehension testing were positive.  Physical therapy was recommended.

A magnetic resonance imaging (MRI) scan with contrast was performed in February 2009.  The arthrography did not show any subdeltoid extravasion.  Significant degenerative changes were see, as well as loose bodies, lesions, and increased capsular volume.  The reviewing doctor noted that impingement symptoms were lessened.  Surgery was not recommended.  Joint tenderness was noted in April 2009.

A VA examination was performed in May 2009.  The examiner verified that the Veteran is right handed.  The veteran reported that he had daily left shoulder pain that comes and goes.  The duration varied.  He experienced popping, but no swelling or grinding.  He had several dislocations in the past that he reduced himself; he tried to avoid using the left arm because it dislocated so easily. He had difficulty working overhead.  The Veteran reported that he was unemployed, but stated that it was not due to his shoulder problem.  On physical examination, there was mild pain of the left shoulder with palpation.  Strength was 5/5.  Flexion and abduction were each to 110 degrees.  Internal rotation was to 60 degrees, and external rotation was to 90 degrees.  There was pain with all movements, but no additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use.  X-ray showed a Hill-Sachs deformity, a Bankart deformity due to multiple prior dislocations, mild acromioclavicular joint arthropathy, and narrowing of the glenohumeral joint with osteophyte formation.

Analysis

Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Separate diagnostic codes identify the various disabilities.  The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. � 4.7.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. �� 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. � 4.45.

For VA purposes, normal range of shoulder motion is: forward elevation (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees.  See 38 C.F.R. � 4.71, Plate I.

There are several options for evaluation of a shoulder disability.  DC 5200, for ankylosis of the scapulohumeral joint, is not applicable, as there is no evidence of ankylosis of the left shoulder.  Significantly, the Veteran has retained some degree of movement of the left shoulder joint.

DC 5201 rates shoulder disability based on the degree of motion of the arm relative to the side; no compensable rating is available for any movement above shoulder level.  Shoulder level is considered to be 90 degrees from the side of the body.  All examiners have noted range of motion of the left arm to be above that height in flexion and abduction, even upon consideration of additional functional impairment due to pain, weakness, fatigue, lack of endurance, or incoordination.  Noted difficulty with overhead reaching still encompasses motion above shoulder level.  The Veteran's range of motion to 110 degrees does not meet the criteria for assignment of the next higher, 30 percent evaluation under DC 5201, which is assignable for limitation of motion to 25 degrees from the side for the minor extremity.

DC 5203, for impairment of the clavicle or scapula, does not contemplate assignment of any evaluation in excess of 20 percent, and therefore need not be considered in the context of the claim for increased evaluation.

The Veteran is currently evaluated under DC 5202, for other impairment of the humerus.  A 20 percent evaluation is assigned under this Code for recurrent dislocations of the scapulohumeral joint.  The frequency of the dislocations and scope of guarding of arm movements is not relevant because the extremity involved here is the nondominant, or minor, one.  Higher evaluations are available when there is impairment of the humeral head.  Complete loss of the head, or flail shoulder, is rated 70 percent disabling.  Nonunion at the humeral head, or a false flail joint, is rated 50 percent disabling.  A 40 percent evaluation is assigned for fibrous union of the humeral head.

There is no finding of abnormally loose movement indicating a flail joint, nor does the Veteran allege such movement.  The head of the humerus is intact, as shown on repeated X-rays.  There is no finding or indication of nonunion of the humeral head, nor is any fibrous growth shown on repeated testing.  At most, a Hill-Sachs lesion, indicating a compression fracture of the head, is present.  Dorland's Illustrated Medical Dictionary 1018 (30th Ed. 2003).  This flattening of the humeral head is not the functional equivalent of fibrous union of the humeral head.  Thus, an increased evaluation is not warranted under DC 5202.

The Board also finds that no higher evaluations can be assigned pursuant to any other potentially applicable diagnostic codes.  Because there are specific diagnostic codes to evaluate shoulder disabilities, consideration of other diagnostic codes for evaluating the disability does not appear appropriate.  See 38 C.F.R. � 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability); Butts v. Brown, 5 Vet. App. 532 (1993).

The Board has also considered his statements that his left shoulder disorder is worse.  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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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); 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").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability of this disability according to the appropriate diagnostic codes.

Such competent evidence concerning the nature and extent of the Veteran's left shoulder disorder 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.

As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony).

The preponderance of the evidence is against the claim; there is no doubt to be resolved.  A disability rating greater than 20 percent for left shoulder arthropathy with recurrent dislocations is not warranted.

Extraschedular Consideration

The record shows that the Veteran is currently unemployed.  As such, the Board must adjudicate the issue of whether referral for an extraschedular rating is warranted.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id. at 115-16; see also 38 C.F.R. � 3.321(b) (1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's left shoulder disorder.  The competent medical evidence of record shows that his left shoulder disorder is primarily manifested by pain and some tenderness.  The applicable diagnostic codes used to rate the Veteran's left shoulder disorder provide for ratings based on limitation of motion.  Furthermore, the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. �� 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206.  Because the first prong of the Thun test is not met, further consideration under 38 C.F.R. � 3.321 is not necessary.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.

TDIU

Additionally, in light of the Veteran's allegations of the impact of the left shoulder disorder on his ability to obtain or retain substantially gainful employment, entitlement to a higher total disability evaluation based on individual unemployability has been considered.  38 C.F.R. � 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, the Veteran is not shown to be unemployable due to his left shoulder disorder.  The left shoulder disorder is the Veteran's sole service-connected disorder.  Although the Veteran alleges at time that he has missed extensive work and lost jobs due to left shoulder problems, at other times, particularly during the May 2009 VA examination, he has indicated other problems caused his unemployment.  The Veteran has received treatment for substance abuse, for example.  Further, the vocational rehabilitation findings contained in the claims file indicate that the Veteran remains able to perform some work, albeit of a more sedentary nature.  The Veteran himself alleges only that he cannot perform manual labor.

Therefore, the Board concludes the Veteran is not unemployable due to his service-connected disability.  The Veteran's left shoulder disorder may interfere with some types of work, but would not prevent him from obtaining work.  The record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail.  The fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.

Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The RO provided the appellant pre-adjudication notice by letter dated in June 2009.  Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims.  Overton v. Nicholson, 20 Vet. App. 427 (2006).

VA has obtained service treatment records and complete VA outpatient treatment records.  The Veteran did not identify any private treatment records pertinent to the appeal.  While the Veteran was referred by VA for emergency room treatment at a private facility in July 2009 following a car accident to "check out if everything is ok," it is not indicated that he actually went for such treatment.  The Veteran also does not allege any left shoulder injury or complaint with regard to the accident.  38 U.S.C.A. � 5103A, 38 C.F.R. � 3.159.  A VA examination was conducted in May 2009.  The examiner made all required findings and fully described the current disability.  The examination is adequate for adjudication purposes.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

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ORDER

A disability rating greater than 20 percent for left shoulder arthropathy with recurrent dislocations is denied.

A TDIU is denied

____________________________________________
APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs