judge_norm: H N SCHWARTZ

disposition: remanded

text:
Citation Nr: 1507000
Decision Date: 02/13/15    Archive Date: 02/18/15

DOCKET NO.  10-46 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska

THE ISSUE

Evaluation of lumbar spine degenerative disc and joint disease, rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel

INTRODUCTION

The Veteran served on active duty from December 1971 to March 1981, February 1985 to February 1986, and July 1986 to April 1991.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.

In June 2011, the Veteran presented testimony during a Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is associated with the claims file.

In February 2012, the Board issued a decision denying the entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc and joint disease, and dismissing the claims of entitlement to service connection for a respiratory disability due to exposure to asbestos, entitlement to an initial rating in excess of 20 percent for cervical spine degenerative joint disease and spondylosis, and entitlement to an initial rating in excess of 10 percent for temporomandibular joint disorder.  Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's decision was identified as having been potentially affected by an invalidated rule related to the duties of the Veterans Law Judge that conducted the June 2011 hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board.  Subsequently, the Veteran requested to only have the prior decision vacated and a new one issued in its place.

In April 2014, the Board issued a decision again denying the claim of entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc and joint disease, and dismissing the claims of entitlement to service connection for a respiratory disability due to exposure to asbestos, entitlement to an initial rating in excess of 20 percent for cervical spine degenerative joint disease and spondylosis, and entitlement to an initial rating in excess of 10 percent for temporomandibular joint disorder.

The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In October 2014, the Court granted a Joint Motion for Remand filed on behalf of the parties, vacating that part of the Board's April 2014 decision pertaining to the issue of entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc and joint disease.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

In light of points raised by the parties in the Joint Motion for Remand, and the Board review of the claims file, additional development on the remaining claim on appeal is warranted.

In the Joint Motion for Remand, the parties noted that the January 2010 VA examination, upon which the Board relied in the April 2014 decision, was inadequate.  The parties noted that the January 2010 VA examiner indicated that the Veteran could walk one-quarter of a mile, had a normal gait, and had no limitation of motion after repetitive motion.  However, during his June 2011 Board hearing, the Veteran reported that his condition had quickly deteriorated and when he started getting pain he could not move and walking became an issue.  The parties agreed that these statements reflected a potential worsening of the disability since the previous examination.

Accordingly, to ensure that the record reflects the current severity of this disability, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected lumbar spine degenerative joint and disc disease.  See 38 U.S.C.A. � 5103A (West 2014); 38 C.F.R. � 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous).

As instructed in the Joint Motion for Remand, the new examination must adequately provide range of motion measurements to reflect functional loss due to pain and provide sufficient information to allow the Board to evaluate its adequacy pursuant to Mitchell v. Shinseki, 25 Vet.App. 32 (2011). See also 38 C.F.R. � 4.59; DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). In Mitchell, the Court held that pain on motion is not limited motion, but required that an examiner adequately address the level of functional loss due to pain. Id. at 42-43

Accordingly, the case is REMANDED for the following action:

1. The AOJ should send to the Veteran and his representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for increased rating for lumbar spine degenerative joint and disc disease. If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain a copy of those records. If the AOJ is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence.

2.  The Veteran should also be afforded a VA examination to ascertain the current severity of the Veteran's lumbar spine disability.  All necessary tests should be conducted.

The examiner should provide findings as to the range of motion of the lumbar spine, including flexion and extension.

The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.

The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain.

The examiner should also indicate if there is ankylosis of the lumbar spine or resultant neurological impairment.  If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations.

In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the lumbar spine disability, if applicable.

The examiner must provide a complete rationale for all the findings and opinions.

3.  After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board.

The appellant has the 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).

_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


series: legacy

judge_norm: C TRUEBA

disposition: denied

condition: back

disposition: granted

condition: radiculopathy

text:
Citation Nr: 1508000
Decision Date: 02/24/15    Archive Date: 02/26/15

DOCKET NO.  10-09 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1.  Entitlement to service connection for a bilateral ankle disability.

2.  Entitlement to an initial disability rating in excess of 10 percent for low back strain.

REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

H. M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from April 1974 to April 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the benefit on appeal.

In May 2012, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the Veteran's claims file.

The Veteran's case was remanded in October 2012 for further development and has since been returned to the Board for adjudication.

In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS.  The Board has reviewed both the paper and electronic records in rendering this decision.

FINDINGS OF FACT

1.  During the appeal period, the Veteran has not been shown to have a bilateral ankle disability, and the claimed disability has not otherwise been shown to be etiologically related to service.

2.  For the entire appeal period, the Veteran's low back disability was manifested by forward flexion of greater than 60 degrees; combined range of motion of the thoracolumbar spine of greater than 120 degrees but not greater than 235 degrees; but no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in the past 12 months.

3.  For the entire timeframe on appeal, the Veteran has experience mild radiculopathy of the right lower extremity.

CONCLUSIONS OF LAW

1.  A bilateral ankle disability was not incurred in or aggravated by active military service.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. � 3.303 (2014).

2.  The criteria for an initial disability rating in excess of 10 percent for a low back disability have not been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2014).

3.  During the entire appeal period, the criteria for a 10 percent disability rating for radiculopathy of the right lower extremity have been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.124a, Diagnostic Code 8520 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

A VCAA letter dated in February 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b)(1) (2014); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The February 2008 letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the Veteran's claim for higher initial rating for his low back disorder, the Board notes that in cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, because service connection for low back disorder has already been granted, VA's VCAA notice obligations with respect to that issue are fully satisfied, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements].

As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. � 3.103(c)(2) (2014) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ explained the issues on appeal during the hearing and generally discussed the basis of the prior determination, the elements of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. � 3.103(c)(2).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).

In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims.  38 C.F.R. � 3.159(c)(4)(i) (2014).

In this case, the Veteran was most recently provided VA examinations in February 2013.  Regarding the ankles, the examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted a physical examination.  Based on the foregoing, the examiner concluded that the Veteran did not have a bilateral ankle disability due to or aggravated by an event, disease, or injury incurred during active service.  Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion obtained in this case is adequate.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

With respect to claim for an increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. � 3.327(a) (2014).

The RO provided the Veteran an appropriate VA examination most recently in February 2013 for his low back disability.  The VA examination reports are thorough and supported by the other treatment evidence of record.  The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria.  The examination report also discussed the impact of the low back disorder on the Veteran's daily living and employment.  Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the February 2013 examination report in this case is adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Given the February 2013 VA examinations and reports; the association of  all outstanding treatment records; and the subsequent readjudication of the claims; the Board finds that there has been substantial compliance with its October 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

I. Service Connection

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

In adjudicating these claims, the Board must assess the competency and credibility of the veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge.  Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994).

II. Increased Rating

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2014).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. � 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. � 4.14.

The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. � 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. � 4.1.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. �� 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. � 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. � 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. � 4.59.

The general rating formula for disease and injuries of the spine.  See 38 C.F.R. � 4.71a, Diagnostic Codes 5235 to 5243.

The general rating formula is as follows:

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

Unfavorable ankylosis of the entire thoracolumbar spine......50

Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine...............................................................40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.................20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height..................................................10

Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees.  The normal combined range of motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. � 4.71a , Diagnostic Codes 5235-5243 (2014).

Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under � 4.25.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  38 C.F.R. � 4.71a, Diagnostic Code 5243.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve.  Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating.  A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve.  A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve.  A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy.  An 80 percent rating requires complete paralysis.  When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. � 4.124a.

Diagnostic Code 8526 provides the rating criteria for paralysis of the femoral nerve. Mild incomplete paralysis of the femoral nerve warrants a 10 percent rating.  A 20 percent rating requires moderate incomplete paralysis of the femoral nerve.  A 30 percent rating requires severe incomplete paralysis of the femoral nerve.  A 40 percent rating requires complete paralysis of the quadriceps extensor muscles.  38 C.F.R. � 4.124a.

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. � 4.124(a).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis.  38 C.F.R. � 4.123 (2014).  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that 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 determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

As to competency, 38 C.F.R. � 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.

Factual Background and Analysis

I. Service Connection

The Veteran is seeking service connection for a bilateral ankle disability.  He has asserted that he injured and twisted his ankles during basic training at Fort Ord, California, while running in sand and along water and repelling from helicopters.  He testified that he experienced blisters and blood on his feet and that he went to sick call and the hospital at Fort Ord, which resulted in him being taken off duty for a week.  The Veteran also testified that he hurt his ankles again in Fort Pope, Louisiana, in approximately July or August 1974 and sought treatment at sick call for the injury.

The service treatment records (STRs) contain records that were generated at Fort Ord; however, the STRs do not document any treatment or hospitalizations for a left or right ankle injury, disability, or symptoms during service.  There is also no evidence of treatment received at Fort Pope, Louisiana.  Nevertheless, the STRs show that, in May 1974, the Veteran was placed on limited duty for four days for blisters on his feet.  However, there is no medical evidence showing that the Veteran was experiencing any symptoms associated with his left or right ankle at that time.  In addition, the Board notes that the Veteran's feet were normal on clinical evaluation at his separation examination in April 1975 and he denied having foot trouble at that time.

The evidentiary record contains a medical opinion that purports to relate the Veteran's current left ankle instability and pain to his military service.  In June 2009, the Veteran's physician, Dr. P.D.M., noted that the Veteran sought treatment for his left ankle and reported having left ankle pain since service in 1974.  In this regard, Dr. P.D.M. noted that the Veteran did not recall an actual injury in service but stated that he was in a training course at that time.  Dr. P.D.M. noted that the Veteran was seen by another physician in 1991 but that prior x-rays and medical charts had been destroyed.  However, Dr. P.D.M. evaluated the Veteran, diagnosed him with left ankle instability, and ultimately opined that it is likely the Veteran's original injury in 1974 was the precipitating cause of the continued ankle and foot instability.

In February 2013, the Veteran was afforded a VA examination of the bilateral ankles, during which the examiner found no current or past bilateral ankle condition.  During the examination, the Veteran advised that his ankles began to hurt following long hikes during service.  The examiner noted the Veteran's in-service treatment for tendonitis and blisters-without the exact site specified.  He was given limited duty for 4 days.  The examiner indicated that he reviewed the VA medical records and found no evidence of a bilateral ankle disability, but there was one emergency department record showing acute, right ankle pain with swelling over the lateral malleolus.  March 2000 x-rays were normal, and the Veteran had no further complaints in either ankle.  The examiner further noted that the Veteran "has clinical evidence of mild radiculopathy right ankle currently which explains why there is limited dorsiflexion and it is not due to any intrinsic ankle pathology at this time."  The Veteran described bilateral ankle pain, with right more than left.  The examiner again noted that the Veteran's "limited dorsiflexion [in the] right ankle is more likely than not related to [lumbar] radiculopathy."

Following review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran did not have a current bilateral ankle disability that was proximately due to an in-service event, injury, or illness.  In reaching this conclusion, the examiner pointed to the one treatment record showing unspecified tendonitis with limited duty, no joint pathology mentioned at separation, less than one year of military service, he worked in a physical capacity between service and the present, normal physical examination of both ankles, and only one x-ray of the right ankle over the years that was normal.

Upon careful review of the evidence of record, the Board finds that service connection for a bilateral ankle disability is not warranted.  In other words, the preponderance of the evidence is against the claim for service connection for a bilateral ankle disability.  A confirmed diagnosis of a bilateral ankle disability is not shown at any time during the appeal period.

The crucial inquiry here is whether the Veteran has established that he has a bilateral ankle disability due to his military service.  The Board concludes he has not.

In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim").  Absent competent evidence of the existence of a disability, service connection cannot be granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Board acknowledges that the Veteran is competent to testify as to symptoms he has experienced during and since service-such as bilateral ankle pain and instability.  However, to the degree that such symptomatology satisfies the criteria for a bilateral ankle disability, the Board places far greater weight on the opinion of the February 2013 VA examiner.  There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of a bilateral ankle disability.  See 38 C.F.R. � 3.159 (a)(1) (2014) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

The Veteran is competent to report what he has experienced, but he is not competent to diagnose a bilateral ankle disability or ascertain the etiology of his symptoms, as the causative factors for such are not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).

The Board also has considered the June 2009 private medical record showing left ankle instability, with a loose body shown between the distal fibula and the talus.  The Board finds that although Dr. P.D.M.'s June 2009 medical record is considered competent medical evidence; however, his medical opinion is not considered sufficient to support the grant of service connection because he did not provide a rationale in support of his claim.  Moreover, the treatment records show no bilateral ankle disability at any time during the appeal period.  As such, the competent and credible February 2013 VA opinion outweighs the June 2009 private opinion to the extent that in addition to interviewing and examining the Veteran, the February 2013 VA examiner provided a detailed rationale for his opinion.

To the extent that the Veteran exhibits symptoms in the right lower extremity, the Board finds that these symptoms have be attributed to radiculopathy of the right lower extremity which is granted in the increased rating section below.

In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a bilateral ankle disability as a consequence of an event, injury, or disease in service.  As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for bilateral ankle disability must be denied.  See 38 U.S.C.A. � 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Increased Rating

The Veteran contends that his low back strain warrants a disability rating in excess of 10 percent.

By way of background, service connection for a low back disability was granted in a January 2009 rating decision.  The RO assigned a 10 percent rating, effective January 14, 2008.  The Veteran appealed the initial rating assigned.

In conjunction with his service connection claim, the Veteran was afforded a VA examination of the spine in December 2008.  The Veteran reported low back pain, and described it as sharp with swelling, giving way, throbbing, burning, locking, weakness, stiffness, and dull feeling.  He assessed the pain as 7 out of 10, with 10 being the most severe pain.  After repetitive use, the Veteran endorsed increased pain, fatigue, weakness, and lack of endurance.  He also endorsed pain radiating in the right lower extremity.  The Veteran endorsed flare-ups of pain following, sitting, standing, bending, stooping, pushing, pulling, lifting, overhead work, kneeling, crawling, squatting, and walking.  Flare-ups could be severe and can last for days, but lying down and medication help reduce the pain.  The Veteran stated that he has used a cane and crutches to help with ambulation for many years, and can only walk 15 minutes/half block before the pain increases.  "He noted many incapacitating episodes in the last 12 months period."  He described shooting pain into the right lower extremity and feels weak and has lack of endurance.

The Veteran reported that he has had to hire two helpers to help him with his work-related physical activities.  Driving more than an hour will cause low back discomfort and stiffness in the legs.  He uses prescription pain medication for treatment, and contends he has lost up to five months of work in the past year due to back pain.  The Veteran's back disability impacts his daily living due to difficulty bathing, using the toilet, dressing, and work.  He endorsed difficulty doing all occupational and recreational activities.

Physical examination of the lumbar spine revealed forward flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees in both directions, and lateral rotation in both directions.  There was no abnormal spinal curvature, muscle spasms, atrophy, or muscle strength testing.  There was tenderness in the mid-lumbar area.  Range of motion testing produced pain with all motion tested, but no fatigue, weakness, lack of endurance, or incoordination.  Noted were the Veteran's difficulties occupationally, recreationally, and with his daily activities.

In June 2012, the Veteran's treating physician indicated that his low back disability caused a moderate degree of pain.  He indicated that the Veteran should not perform more than 30 percent of his job duties (lifting, walking, etc.)

The Veteran was afforded another VA examination of the spine in February 2013, during which he was diagnosed as having degeneration of the lumbar and lumbosacral discs, displacement of lumbosacral discs without myelopathy, and mild spinal stenosis.  The examiner also diagnosed minimal right lumbar radiculopathy involving the right foot related to the thoracolumbar spine condition.  The Veteran reported painful motion in the lumbar spine.

Range of motion testing of the lumbar spine revealed forward flexion to 70 degrees, with pain beginning at 70 degrees; full extension to 30 degrees without objective evidence of painful motion; bilateral flexion to 30 degrees in both directions without objective evidence of painful motion; and right and left lateral rotation to 20 degrees without objective evidence of painful motion.  The Veteran was able to perform repetitive use testing, but there was no objective evidence of additional limitation of motion.  There was no evidence of muscle spasm, tenderness to palpation, decreased muscle strength, or abnormal reflexes.  There was decreased sensation in the right foot and mild paresthesias/dysthesias and intermittent pain in the right lower extremity.  There were no signs of radiculopathy in the left lower extremity.  The examiner described the Veteran's radiculopathy of the right lower extremity as mild.  The Veteran endorsed some urinary incontinence due to his low back disability (3 instances in the last 5 months).  There was no evidence of IVDS, nor did the Veteran experience incapacitating episodes due to his low back disability.

Following examination and interview of the Veteran, as well as review of the claims file, the examiner opined that the low back disability did not impact the Veteran's ability to work.  The examiner specifically found that it is less likely than not that the Veteran's "lumbar spine condition renders him unemployable in a physical or [sedentary] capacity at this time."  The examiner also noted that the Veteran worked at the local fairgrounds until July 2012 and currently works at his own business.

Upon careful review of the evidence of record, the Board finds that a disability rating in excess of 10 percent for the Veteran's low back disability is not warranted, but a separate, 10 percent rating for mild radiculopathy of the right lower extremity is warranted.

The evidence of record does not show that the Veteran's lumbar spine disability was manifested by forward flexion of greater than 30 degrees, but less than 60 degrees; combined range of motion of the thoracolumbar spine of less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in the past 12 months.  In other words, his symptoms did not meet the rating criteria for a higher, 20 percent rating.

The Board is aware that the Veteran reported painful motion with all ranges of motion during his December 2008 VA examination.  The Board notes however, that at no other time during the appeal period was the Veteran's back disability shown to be painful in all ranges of motion.  Moreover, the December 2008 examiner found no evidence of additional limitation of motion following repetitive testing.  Additionally, the most recent VA examination (February 2013) found objective evidence that painful motion in the thoracolumbar spine began upon 70 degrees of flexion and no less.  The Board finds that the objective assertion of painful motion, as well as the absence of any significant limitation of motion shown during VA treatment, outweighs the single, December 2008 record showing pain in all ranges of motion in the thoracolumbar spine.

The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome.  There is no evidence showing that bed rest has been prescribed by a physician.  As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application for any timeframe.

The Board accepts that the Veteran has functional impairment and pain.  See DeLuca.  The Board also finds the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation.  As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's back disability.

The Board finds, however, that the Veteran has been clearly shown to have radiculopathy of the right lower extremity throughout the entire appeal period.  This has been described by medical professionals as mild in nature.  The Veteran has not been shown to have neuropathy of the left lower extremity, nor has the Veteran contended any neurological manifestations of the left lower extremity.  As such, the Board finds that a separate, 10 percent rating for radiculopathy of the right lower extremity is warranted.

The Board notes, however, that there is no indication during the period on appeal that the incomplete paralysis of the right lower extremity is any more than mild in nature.  Throughout the timeframe on appeal, sensory examinations were sometimes noted as normal, and at other times, there was decreased sensation in the right lower extremity.  In general, the Veteran's motor examinations have revealed normal tone and strength in the right lower extremity.  Although the Veteran is competent to describe radiating pain down his right lower extremity, the consistent lack of significant objective findings weighs against granting a rating in excess of 20 percent for the right lower extremity.  In other words, his radiculopathy symptoms are no more than mild in nature in the right lower extremity for the entire appeal period.

As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran.  The Board finds no provision upon which to assign a rating greater than 10 percent, for his service-connected back disability, nor is there a provision upon which to assign a rating in excess of 10 percent for radiculopathy of the right lower extremity.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against a disability rating in excess of 10 percent for his back disability; but in favor of a separate 10 percent disability rating for associated mild, incomplete paralysis of the sciatic nerve in the right lower extremity.  However, the preponderance of the evidence is against a disability rating in excess of 10 percent for radiculopathy of the right lower extremity or a separate 10 percent rating for any neurological manifestation in the left lower extremity.

Additional Considerations

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards.  See 38 C.F.R. � 3.321(b)(1) (2014).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected low back disability with right radiculopathy is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's low back disability with right radiculopathy with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms he experiences.  Specifically, the Veteran primarily reports pain, decreased motion, fatigability, radiating pain into the right lower extremity and loss of function.  The current 10 percent rating each under Diagnostic Codes 5237 and 8520 and are specific for such symptomatology.  Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disabilities on appeal.

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation).  The Board notes that during his February 2013 VA examination, the Veteran reported that he is working at his own business, and has not contended he is unemployable due to his service-connected low back disability with right radiculopathy.  Further, there is no suggestion, either from the Veteran or from the evidence itself, that the service-connected low back disability with right radiculopathy has a profound effect on his ability to work in and of themselves.  In fact, the February 2013 VA examiner found that the Veteran's low back disability with right radiculopathy does not prevent the Veteran from physical or sedentary employment.  Therefore, the Board finds that this appeal does not encompass a TDIU claim at this time.

ORDER

Service connection for a bilateral ankle disability is denied.

Entitlement to an initial disability rating in excess of 10 percent for low back disability is denied.

Entitlement to a separate, 10 percent rating for mild radiculopathy of the right lower extremity is granted.

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

Department of Veterans Affairs


judge_norm: VITO A CLEMENTI

text:
Citation Nr: 1509000
Decision Date: 03/02/15    Archive Date: 03/17/15

DOCKET NO.  09-22 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The Veteran served on active duty from April 1997 to June 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO).

 In March 2009, the Veteran, accompanied by his authorized representative, testified before a Decision Review Officer (DRO), at the RO (DRO hearing). A transcript of that hearing has been associated with the claims file.

 In March 2011, the Veteran, accompanied by his authorized representative, appeared at a hearing held before the below-signed Veterans Law Judge (VLJ) in Washington, D.C (Central Office hearing). A transcript of that hearing has been associated with the claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c). Expedited handling is requested.)

1. Obtain and associate with the claims file all outstanding records of VA and private treatment for the Veteran's psychiatric disorders. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. Ensure the Veteran is provided the necessary authorization and release forms (VA Form 21-4142) to allow VA to obtain all confidential private treatment records. At a minimum, procure all outstanding VA treatment records, to include any regarding his December 2014 and January 2015 hospitalizations for psychiatric disorders, as noted in the claims file.

2. Provide access to the relevant documentation in the Veteran's electronic claims file to the VA examiner who performed the November 2013 VA psychiatric examination and wrote the April 2014 VA medical opinion. If that examiner is not available, the file should be provided to another qualified examiner.

Having reviewed the claims file, the examiner is asked to opine as to whether the Veteran experienced acquired psychiatric disorder symptomatology to a compensable degree (i.e. mild or transient symptomatology directly attributed to the Veteran's currently diagnosed schizophrenia which caused decreased work efficiency and ability to perform occupational tasks only during periods of significant stress) within one year of his June 1999 discharge from service.

A rationale must be provided for any findings rendered and any medical treatises referenced by the examiner must be cited. In providing the rationale, the examiner must provide detailed for the opinion. For example, if the examiner believes that the Veteran did not have compensable psychiatric disorder symptomatology within one year of his discharge because he was working during that period, as stated in the April 2014 VA medical opinion, the examiner should provide more detail as to why this fact forms the basis for the opinion. If, alternatively, the examiner is unable to render an opinion without resort to speculation, he or she must offer a detailed explanation as to the reasons for his or her inability.

2. After any subsequent development, readjudicate the Veteran's claim. If the benefits sought are not fully granted, furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order

The Veteran has the 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).

_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


judge_norm: U R POWELL

text:
Citation Nr: 1510000
Decision Date: 03/10/15    Archive Date: 03/17/15

DOCKET NO.  13-10 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Appellant

ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel

INTRODUCTION

The Veteran had active military service from March 1943 to August 1945.  The appellant is his widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

By a decision in February 2014, the Board found that new and material evidence had been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death.  The reopened claim was previously before the Board in February 2014, June 2014, and October 2014 when it was remanded for additional development and consideration.  It now returns for appellate review.

In October 2012, the appellant testified at a hearing before a Decision Review Officer.  In January 2014, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. The transcripts of the hearings are of record.

Also noted in the June 2014 and October 2014 remands, the issue of an increased rating for the Veteran's service-connected psychiatric disorder for accrued benefits purposes and a claim for entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. � 1318 have been raised by the record in the appellant's June 2014 statement.  However, it does not appear that these issues have been adjudicated by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. � 19.9(b) (2014).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.

REMAND

The Board finds that the development requested by the Board's October 2014 remand directives were not fully completed.  A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998).  It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Thus, in the present case additional development must be conducted.

The October 2014 Board remand directed an addendum opinion be obtained as to whether it is at least as likely as not that the Veteran's rectal cancer was aggravated by his service-connected psychiatric disability.  The resulting January 2015 VA addendum opinion stated that it would be merely speculative to say that the Veteran's posttraumatic stress disorder (PTSD) aggravated his rectal cancer.  However, the VA examiner further opined that a review of the medical literature and studies offered no supporting material that could allow for this connection to be made beyond speculation.   This was consistent with an August 2014 opinion provided by the same examiner who opined that the June 2014 medical articles submitted by the appellant suggest a link between PTSD and neurochemical changes but are not related to colon cancer.  However, the articles are broader than suggested by that VA examiner, as they indicate a link between PTSD and physical health.  As a result, the Board finds that January 2015 addendum opinion is inadequate, and another opinion is warranted.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1.  Request that a VA examiner, other than the VA examiner who provided the prior VA opinions, provide a separate opinion.  The Veteran's claims file must be made available to and reviewed by the examiner.  The examiner should address the following:

Is it at least as likely as not (a 50 percent likelihood, or greater) that the Veteran's rectal cancer was aggravated (permanently increased in severity beyond the normal progression of the disease) by his service-connected psychiatric disability?

The examiner must specifically reconcile his/her opinion with the medical treatises and articles submitted by the appellant in June 2014, and located in Virtual VA, as to the connection between PTSD and physical ailments.  These treatises and articles are entitled:  Trauma, PTSD, and Physical Health; Posttraumatic Stress Disorder and Physical Illness; Early Results Link PTSD, Compromised Immune Systems; The Stress Response and the Hypothalamic-pituitary-adrenal Axis:  From Molecule to Melancholia; Study Shows How Inflammation Can Lead to Cancer; and Chronic Inflammation and Cancer.

A complete rationale must be provided for any opinion proffered.

2.  Finally, after undertaking any other development deemed appropriate, readjudicate the claim of entitlement to service connection for the cause of the Veteran's death.  If the benefit sought is not granted, furnish the appellant and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

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

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).