Citation Nr: 0307648 Decision Date: 04/22/03 Archive Date: 04/30/03 DOCKET NO. 93-07 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the residuals of a bilateral urethral transplant, secondary to pyelonephritis. 2. Entitlement to a rating in excess of 10 percent for scoliosis of the thoracic spine with degenerative spurring. 3. Entitlement to a rating in excess of 10 percent for scoliosis of the lumbar spine with degenerative spurring. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from February 1968 to November 1969. This case was previously before the Board of Veterans' Appeals (Board) on several occasions, the last time in August 2000. Each time, it was remanded for further development. In September 2002, following the requested development, the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, confirmed and continued the following ratings for the indicated service-connected disabilities: Bilateral urethral transplant, secondary to pyelonephritis, 30 percent disabling; scoliosis of the thoracic spine with degenerative spurring, 10 percent disabling; scoliosis of the lumbar spine with degenerative spurring, 10 percent disabling. Thereafter, the case was returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran's residuals of a bilateral urethral transplant, secondary to pyelonephritis, manifested primarily by complaints of kidney pain and some permanent changes in the right upper pole of the kidney secondary to reflux. 2. The veteran's scoliosis of the thoracic spine with degenerative spurring is manifested primarily by complaints of pain. 3. The veteran's scoliosis of the lumbar spine with degenerative spurring, manifested primarily by pain on motion, morning stiffness, and some limitation of motion, is productive of no more than slight impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a bilateral urethral transplant, secondary to pyelonephritis, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115(a), Diagnostic Code (DC) 7508 (2002) (prior to February 17, 1994, rated under 38 C.F.R. § 4.115(a), DC 7502, 7504, 7508-7511). 2. The criteria for a rating in excess of 10 percent for scoliosis of the thoracic spine with degenerative spurring have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5010, 5291 (2002). 3. The criteria for a rating in excess of 10 percent for scoliosis of the lumbar spine with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5295 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist During the pendency of this appeal, there was a significant change in the law. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)). That law redefined the obligations of the VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A. By virtue of information sent to the veteran in Board remands, dated in August 1994, February 1998, and August 2000; the statement of the case (SOC); supplemental statements of the case (SSOC); and in a March 2001 letter, the veteran and his representative were notified of the evidence necessary to substantiate the claims of entitlement to increased ratings for the veteran's service connected urologic disorder, thoracic spine disability, and lumbar spine disability. Indeed, the SSOC issued in September 2002 sets forth the provisions of the enabling regulations applicable to the VCAA. Those provisions informed the veteran of what evidence and information VA would obtain for him, with specific references to such materials as government reports and medical records. The RO also explained what information and evidence the veteran needed to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO has made reasonable efforts to obtain relevant records adequately identified by the veteran. In fact, in February 1995 and September 2000, the RO specifically requested that the veteran identify all health care providers who have treated him for any of the disabilities at issue. On the following dates, the VA (primarily the RO) requested records from the indicated facilities: February 1990, September 1992, February 1997, March 1998, July 1999, May 2000, March 2001 - VA Medical Center (MC) in Las Vegas, Nevada; February 1995 - VAMC's in Charleston, South Carolina; Loma Linda, California; and Lexington, Kentucky; October 1995 - Desert Springs Hospital; October 1995 and January 1996 - A. B. S., M.D.; November 1995 - D. G., M.D.; March 1996 - VAMC in Lexington, Kentucky; and September 2000 and March 2001 - from the Social Security Administration. In March 2001, the RO also requested that the veteran identify all treatment dates at the VA Medical Center in Long Beach, California Evidence received in association with the current appeal consists of records from the VAMC's in Las Vegas, Loma Linda, Long Beach, and San Diego, reflecting the veteran's treatment from October 1989 to January 2003; a December 1989 report from Desert Springs Hospital; an October 1990 report from a private chiropractor; an October 1994 report from A. B. S., M.D.; a July 1995 report from Desert Urology and Sunrise Hospital and Medical Center; a January 1996 report from D. B., D.C.; and a January 1997 report from Sunrise Hospital and Medical Center. In conjunction with his appeal, the veteran underwent the following examinations, which were performed by or on behalf of the VA on the dates indicated: orthopedic examinations in August 1991, October 1992, May 1995, May 1998, September 1998 (plus addendum, dated in October 1998), and August 1999; neurologic examinations in August 1991 and August 1999; urologic examinations in August 1991, May 1995, November 1995 and May 2002 (plus addendum, dated in July 2002); and a general medical examination in November 1995. The reports of those examinations have been associated with the claims folder. In September 1992 and July 1999, the veteran had hearings on his appeal at the RO before a local hearing officer. The transcripts of those hearings have been associated with the claims folder. After reviewing the record, the Board finds that the RO has met its duty to assist the veteran in the development of his claim. It appears that all relevant evidence identified by the veteran has been obtained and associated with the claims folder. In this regard, it should be noted that he has not identified any outstanding evidence (which has not been sought by the VA) which could be used to support any of the issues on appeal. Accordingly, there is no need for further development of the evidence in order to meet the requirements of the VCAA. II. The Facts In December 1989, the veteran was admitted to Desert Springs Hospital with complaints of abdominal pain. A urinalysis revealed a red blood cell count of 7100 and a white blood cell count of 20,500. Blood urea nitrogen (BUN) was 21 and the creatinine level was 1.7. The veteran's blood pressure readings were 130/86, 150/80, and 120/70. An intravenous pyelogram showed a left distal urethral stone with obstruction. The veteran appeared to be in a moderate to severe amount of distress secondary to pain. On examination, the veteran was described as well developed and well nourished. The diagnosis was left sided distal urethral calculus, status post two urethral cystomies done for reflux in the past. Thereafter, the veteran was transferred to the VA Medical Center in Loma Linda, California. The veteran's white blood cell count on admission was 21.1 which diminished to 12.4 after the institution of antibiotics. The urinary culture was negative for growth bacteria. The veteran underwent a cystoscopy, retrograde pyelogram, and placement of a left double J urethral catheter. Thereafter, his left flank pain diminished. At discharge, he was ambulating without difficulty and was eating a full and regular diet. He was a febrile and his serological studies were essentially within normal limits. At discharge, the diagnosis responsible for the length of the veteran's stay was reportedly urosepsis. Urolithiasis was also diagnosed. During his stay at Desert Springs Hospital in December 1989, an intravenous pyelogram revealed a bilateral hydronephrosis, mild on the right and slightly worse on the left. There was a 1 centimeter stone in the distal left ureter. Despite the marked dilatation of the left ureter, the degree of obstruction was relatively mild, as there was prompt symmetric function. The etiology of the bilateral and chronic hydronephrosis was not apparent on the study. VA outpatient treatment records, dated from October 1989 through July 1991, show that the veteran was treated for various disorders, including a urethral stone and low back pain. His height was variously measured as 5 feet, 6 inches or 5 feet, 7 inches, and his weight was between 143 and 163 pounds. His systolic readings ranged from 98 to 150 and his diastolic readings ranged from 64 to 86. In August 1991, the veteran was issued a transcutaneous nerve stimulator (TENS). VA medical records show that in January 1990, the veteran passed left urethral stone. In January 1990, the veteran underwent a cystoscopy which revealed an opacity at the distal ureter, consistent with a stone, with a reimplanted ureter in the left lateral dome. A subsequent pathological report confirmed the presence of a renal calculus. In April 1990, the veteran reported that he was still feeling flank pain consistently. There was no hematuria or urgency. An abdominal ultrasound, performed by the VA in May 1990 revealed a small, nonobstructing calculus within the lower right kidney. An intravenous pyelogram, performed that same month revealed right sided renolithiasis; findings suggestive of right urethral calculus with complete obstruction; and moderate post void residual. In October 1990, the veteran received private chiropractic treatment for his cervical, thoracic, and lumbar spines. VA medical records, dated in April 1991, show that the veteran passed a small kidney stone. In July 1991, the veteran was treated for chronic low back pain due to scoliosis. He was moderately tender over both lumbar muscles, and his range of motion was moderately diminished. Straight leg raising was restricted by 15 degrees. Deep tendon reflexes were equal. During an orthopedic examination performed for the VA in August 1991, the veteran reported that he had been receiving chiropractic treatment, as well as physical therapy from the VA. He denied any injury to his back subsequent to service. The veteran stated that he almost always had pain in his lower back and described it as a constant ache or soreness. He reportedly could not bend or lift more than 15 pounds. He also reportedly had difficulty driving, riding, or sitting, and it was noted that he had problems with walking. Sneezing and sexual relations aggravated his back pain. He reported the use of frequent hot baths and medication. His history of pyelonephritis was noted. On examination, the veteran had a right dorsolumbar rib hump. He was tender in the dorsal and lumbar spines. He was able to flex to 70 degrees and extend to 15 degrees. He could rotate to either side to 75 degrees and could abduct to 45 degrees. His right calf measured 15 inches, and his left calf measured 14 inches. Motor power of the lower extremities, as well as a sensory examination, were normal. Straight leg raising could be performed to 70 degrees, bilaterally, and knee and ankle reflexes were symmetrical at 1 plus. X-rays, taken by the VA the previous month indicated four lumbar vertebrae slightly narrowing at the last interspace. The diagnoses were history of pyelonephritis and urinary problems; chronic low back pain; and minimal arthritis. The examiner stated that the veteran had a relatively normal physical examination, in spite of his complaints to the contrary. The examiner did not see how the basis of the examination could increase the veteran's impairment rating. During a nephrology examination, performed for the VA in August 1991, the veteran reported about 6 to 10 episodes of stone passage. He also reported continuous back pain. Laboratory work which accompanied the veteran, including a BUN and creatinines which had been normal on several occasions; an unremarkable electrolyte panel; normal calcium and phosphorous values; and one uric acid level of 3.7. The examiner noted that the uric acid level was low but that the veteran was not taking any medication which would change it. Complete blood cell counts indicated a modest elevation in the platelet count. Three urinalyses performed at the VA were unremarkable. A urinalysis done during the examination was also unremarkable. The veteran had reportedly not had any chest complaints, including angina or tachycardia. He also denied nausea, vomiting, hematemesis, melena, and jaundice. He stated that his major disability related to his back and that he had scoliosis and a short left leg. The veteran felt that that disorder prevented him from doing any useful work. On examination, the veteran was reportedly slightly overweight. His blood pressure was 100/82, and he appeared to be comfortable. There was no obvious organomegaly, although the examiner noted that subtle findings would be difficult to evaluate. The veteran had a large midline abdominal scar, which he said was from his urethral surgery. His bladder was at palpable, and the urethral medius looked unremarkable. His external genitalia were unremarkable, and the scrotum contents were normal, without any untoward masses. The prostate was symmetrical, slightly enlarged, and nontender. There was no peripheral edema, femoral pulses were easily palpable without bruits. Popliteal pulses were diminished. Pedal and tibial pulses were difficult to feel and reportedly could even be absent. The extremities were somewhat cool, although not cyanotic. The examiner's impression was that no active signs of renal disease. He noted, however, that he had only the above mentioned data to go on and that the films and operative reports were not available to him. He also noted that he did not have creatinine clearance data or metabolic stone evaluations. The examiner noted that while there may be some persistent pain from the veteran's urethral surgeries and possibly recurrent urethral infections, he could not state so at that time, given the incomplete data. He noted that the veteran did have a stent in his left ureter; however, whether or not that caused pain or disability the examiner could not state. The examiner also noted that the veteran had chronic back pain with difficulty secondary to scoliosis. In regard to the history of recurrent stone formation, the examiner suggested that the veteran be evaluated fully at the VA clinic or by a nephrologist as to whether he should be taking medication to prevent the recurrence of problems with renal stones. Twenty-four hour urine testing was also recommended. The examiner noted that the veteran had a relatively low serum uric acid but that he did not have any indication for treatment or further therapy thereof. VA outpatient records, dated from February 1992 to March 1998 show that the veteran's body weight was between 130 and 140 pounds and that his diastolic reading was between 91 and 110. His systolic reading was between 60 and 78. In September 1992, the veteran had a hearing at the RO. He testified that he had had low back pain for many years. He noted that he passed kidney stones frequently, the most recent being a couple of weeks earlier. He noted that he did not have blood in the urine and that he was able to sleep through the night. As to his back problem, the veteran testified that he had difficulty going up and down stairs and performing simply daily chores, such as changing a tire. He also testified that he was unable to participate in sports of any type. He stated that his back hurt all the time, sometimes worse than others. He also stated that he had to take a hot bath just to get started in the morning. He said that he could walk about three miles without bad pain. He noted that after prolonged sitting for example two to three hours, he would be stiff when he tried to get up. He also noted that his back disability affected his ability to drive. He reported that the back pain radiated into his legs. He also reported muscle spasms in the low back several times a week. X-rays of the veteran's lumbar spine, taken by the VA in July 1991 revealed that the vertebral bodies and disc spaces were intact. No abnormalities were seen within the posterior elements, and the spinous processes and transverse processes were intact. The sacroiliac joints also appeared normal. In October 1992, the veteran again underwent a VA orthopedic examination. It was noted that he continued to complain of back discomfort and intermittent kidney stones. He had reportedly ceased a lot of physical activity and had become generally weak. The back discomfort was described as mild and occasionally hard aching and was centered in the midthoracic spine, extending down to the lower lumbar region. On examination, the veteran walked somewhat stiffly and slowly. There was an increase in the upper thoracic kyphosis or round back resulting in hyperextension of the neck. Thoracic scoliosis was present. The thoracic curve was convexed to the left and centered in the upper mid portion with a compensatory lumbar curve and depression of the right shoulder. The lumbar region was flat. Extension was limited to 15 degrees and was uncomfortable. The upper extremities appeared normal, although the strength was globally diminished. The reflexes and sensation were intact. An examination of the lower extremities revealed no definite abnormalities. The deep tendon reflexes and sensation were intact, and the veteran was able to walk on his heels and toes and stand on either leg without difficulty. X-rays of the thoracic and upper lumbar spine confirmed the thoracic kyphoscoliosis. They also showed anterior narrowing of the disc spaces in the central portion with virtual bony fusion at several points. The examiner stated that the musculature of the entire back was thin and weak. It was apparent to the examiner that the veteran had congenital kyphoscoliosis in the thoracic and lumbar region, aggravated by military service. The examiner noted the recurrence of the veteran's kidney stones but did not identify a definite cause. The examiner considered the veteran unemployable due to his difficulties. An intravenous pyelogram, reportedly performed by the VA in December 1992, suggested the presence of bilateral renal calculi. Also noted was mild right hydronephrosis and probable bladder diverticulum. VA outpatient treatment records, dated from February to April, 1994, show that the veteran was treated for kidney stones. His blood pressure was variously measured as 90/56, 90/68, and 102/62. His body weight was variously reported as 134 1/2 pounds and 139 1/2 pounds. X-rays of the veteran's abdomen, taken by the VA in February and March 1994 revealed bilateral nephrolithiasis showing an increase in size and shape, compared to a December 1992 examination. A .5 centimeter calcified calculus was noted in the left ureterovesical junction. In March 1994, VA laboratory testing revealed that the veteran's red blood cell count was high at 8 to 12. In May 1994, the veteran was treated by the VA for bilateral renal stones. Bilateral ureteral stent placement was attempted but was unsuccessful due to the veteran's anatomy from a previous ureteral implantation. Therefore, the veteran was transferred to the VA Medical Center in Long Beach, California, for extracorporeal shock wave lithotripsy. He tolerated the procedure well and was stable, postoperatively. The diagnosis was bilateral nephrolithiasis. In October 1994, A. B. S., M.D., prescribed traction for the veteran. In January 1995, the veteran's BUN was increased. In January 1997, the veteran's creatinine and red blood cell count were low, and his white blood cell count was high. His BUN was 31. X-rays of the lumbar spine, taken in February 1995 by the VA revealed no fracture, subluxation, osseous or discogenic disease of vertebral components. In March 1995, the veteran underwent a urologic examination for the VA. It was noted that he had undergone bilateral ureteral implantation for reflux. That procedure was followed by recurrent episodes of urolithiasis, treated with electroshock wave lithotripsy. The examination was reportedly normal. It was noted that the veteran required an intravenous pyelogram to determine the status of his kidneys. During a March 1995 neurologic examination, conducted for the VA, the veteran complained of low back pain, intermittently severe. He also complained of intermittent leg weakness. He stated that he could not work due to his back problem. On examination, the veteran's blood pressure was 120/70, and his weight was 139 pounds. The back revealed minimal curvature, but the veteran demonstrated a full range of motion in the spine. Strength was 5/5 in all muscle groups, except for the tibialis anterior and the iliopsoas muscles, which bilaterally showed giveway weakness. Vibratory sensation was intact at the ankles, and the temperature sensation was symmetric. The veteran's gait was normal with respect to heel, toe and tandem walking. The veteran's reflexes were two plus and symmetric, including the ankle reflexes. Straight leg raising was negative at 90 degrees when the veteran was distracted, but positive at 45 degrees only on the right, when he was supine. X-rays revealed some mild scoliosis of the thoracic spine and very little evidence of degenerative joint disease in the lumbar spine. Following the examination, the examiner noted that the veteran had some functional overlay to at least some degree with respect to his back. There did not appear to be any evidence of neurologic abnormality on the examination. The scoliosis, which was reportedly well documented on the veteran's X-rays, did not appear to be causing his current symptomatology. The examiner recommended nerve conduction studies in the right lower extremity. In March 1995, the veteran underwent an orthopedic examination for the VA. He described pain basically from his occiput to his sacrum and tingling in his fingers and legs. It was noted that he had been taking multiple medications. On examination, he had diffuse tenderness in the entire spine to percussion. In spite of that tenderness, he had good flexion of the lumbar spine, and the examiner saw no scoliosis in the lumbar or thoracic spine. Straight leg raising was negative at 90 degrees, and sensation, muscle strength, and reflexes were normal. X-rays of the lumbar and lower thoracic spines appeared to be normal. Minor scoliosis was noted in the upper thoracic spine with a very, very small compensatory curve in the lumbar spine. The veteran did not limp. The examiner concluded that the veteran had minimal scoliosis, which he suspected was stable. In March 1995, the veteran's claim for Social Security disability benefits was denied. In July 1995, the veteran underwent a left ureteroscopy with laser/bilateral ESWL for kidney stones. On intravenous pyelogram, performed several days earlier, had revealed a 1 centimeter left ureterovesical junction stone and probable bilateral papillary necrosis, bilateral renal stones. In August 1995, the veteran was hospitalized by the VA for repeat bilateral ESWL for recurrent stone disease. That procedure was performed on the right renal calculus without complication. He also underwent a cystoscopy for extraction of a bladder stone. During the hospitalization, it was noted that his blood pressure was 94/60. He was described as a thin, scoliotic male in no apparent distress. VA laboratory studies, performed in November 1995 show that the veteran's white blood cell count was high at 15. Urea nitrogen was also high at 22. In November 1995, the veteran underwent a VA urologic examination. He complained of back pain and severe pain with the passage of kidney stones. The veteran reportedly urinated every four hours and had nocturia times two. His last stone reportedly passed three weeks earlier. The diagnoses were pyelonephritis pyelolithiasis. In November 1995, the veteran also underwent a VA orthopedic examination. He stated that he had last worked in 1985 as a steel worker and that his low back pain had increased since that time. On examination, he demonstrated mild thoracic scoliosis, convexed to the right. There was lumbosacral spine joint tenderness. There was no paraspinal muscle spasms and no sciatic notch tenderness. Straight leg raising was accomplished to 75 degrees. Goldthwait's sign was negative, bilaterally. The musculature of the back was reportedly normal. The following range of lumbar spine motion was noted: Forward flexion--75 degrees; backward extension--20 degrees; flexion--40 degrees, bilaterally; and rotation--35 degrees, bilaterally. There was objective evidence of pain on flexion and extension. No muscle atrophy or footdrop was noted. The various diagnoses were thoracic scoliosis and degenerative disc disease of the lumbosacral spine. In November 1995, the veteran also underwent a VA general medical examination. In part, he complained of severe back pain which was increased with prolonged standing and walking, as well as bending, pushing, and pulling. The veteran reportedly weighed 126 pounds and that his maximum weight during the previous year had been 150 pounds. His build and state of nutrition were described as ectomorphic. His carriage was erect, his posture was upright, and he did not have an antalgic gait. His blood pressure was 100/60. The diagnoses included thoracic scoliosis, degenerative disc disease of the lumbar spine, pyelonephritis, and pyeloureterolithiasis. In January 1996, the veteran was treated by D. P. B., D.C., in part, for complaints of pain in his neck and low back. The cervicodorsal and lumbosacral ranges of motion were limited and performed with pain and stiffness. Bilateral leg raising was positive, bilaterally. Palpation over the spinous processes and into the paravertebral musculature revealed pain and tenderness throughout the spine. X-rays of the cervical and lumbar spines revealed osteoarthritis and decreased disc spacing accompanied by severe levoscoliosis, apexed at T3. Following the examination, the relevant diagnoses were lumbar sprain/strain; lumbar neuritis/neuralgia; lumbar nerve root compression; and lumbar disc degeneration. VA outpatient records, reflect the veteran's treatment from February 1996 to April 1997. The various disabilities included chronic low back pain and superimposed recurrent urolithiasis. The veteran's weight ranged from 129 pounds to 143 1/2 pounds. His systolic readings ranged from 82 to 110, and his diastolic readings ranged from 45 to 72. His white blood count was consistently elevated, and in January 1997, his albumin was decreased. In March 1997, the veteran underwent a VA general medical examination. It was noted that the veteran had continued loss of ability to work due to his service-connected pyelonephritis in both kidneys. Thoracic and lumbar scoliosis was also reported. The veteran stated that the constant ache in his midback, from the lumbar area to the upper thoracic spine was 3 to 9 on a scale of 0 to 10, with 10 being the worst. His weight was 150 pounds both at the time of his examination and is the highest weight he had achieved during the previous year. He walked with a nonantalgic gait. An evaluation of the musculoskeletal system revealed mild scoliosis of the thoracolumbar spine, rotary type. There was no loss of the normal lordotic lumbar curve. There was also no tenderness of the paraspinal muscles on either side of the spine and no muscle spasm present. Muscle strength was normal and straight leg raising was accomplished to 90 degrees, bilaterally. Goldthwait's sign was negative. The veteran demonstrated the following range of low back motion: Flexion--95 degrees; extension--10 degrees; right rotation-- 20 degrees; left rotation--35 degrees; left lateral flexion-- 40 degrees; and right lateral flexion--30 degrees. X-rays of the thoracic spine revealed mild rotary scoliosis, but were otherwise negative. X-rays of the lumbosacral spine were negative. Such findings had reportedly been stable since February 1995. Following the general medical examination, the various diagnoses included pyelonephritis, bilateral, status post ureteral transplants times two; and rotary scoliosis of the thoracolumbar spine. Laboratory tests, performed by the VA in April 1997, show that the veteran's blood urea nitrogen was high. His white blood cell count was also high. VA outpatient records reflect the veteran's treatment from December 1997 to August 1999 for various disabilities, including a backache. His weight ranged from 112 pounds to 128 pounds. His systolic readings ranged from 98 to 108, and his diastolic readings ranged from 58 to 80. In May 1999, it was noted that the veteran was permanently and totally disabled due to chronic pain. In May 1998, the veteran underwent a VA orthopedic examination. He complained of constant back pain, stiffness, and trouble bending over. He stated that he really couldn't do much because his back hurt him. He could reportedly walk six to seven blocks. He stated that he had no sciatica. On examination, the veteran demonstrated a normal gait. He was slender and had very minor thoracic scoliosis. In spite of the scoliosis, he was quite flexible and was correctable on bending to the right, as well as bending to the left. There was no pain to palpation of the thoracic spine. The veteran demonstrated the following range of lumbar spine motion: Flexion--70 degrees; hyperextension--15 degrees; lateral bending--30 degrees, bilaterally; and rotation in excess of 50 degrees. Straight leg raising was negative at 90 degrees. The sensation in the lower extremities was normal, and reflexes at the knee and ankle were two plus and equal, bilaterally. The examiner reviewed the X-rays and noted that the veteran had minor thoracic scoliosis which started in the lower cervical area about C6 or C7. He noted that there was less than 15 degrees of scoliosis and absolutely no secondary changes. The relevant diagnosis was thoracic scoliosis without secondary changes. The examiner noted that he had reviewed the claims folder and stated the only problem he was having was the fact that the veteran was a poor historian. The examiner reported that he was unable to get a feel for the veteran's activity level, except that the veteran did not do very much in a day. It was noted that his inactivity didn't seem to be particularly related to his back but rather his lifestyle. In September 1998, the veteran again underwent a VA orthopedic examination. He described constant aching pain in his mid and lower back. There was reportedly nothing that he did to aggravate the pain in his lower back. It was noted that he occasionally wore a back support and that he occasionally used a TENS unit. The pain from his lower back reportedly radiated into both thighs. He also occasionally experienced numbness and tingling in his left leg. Examination of the thoracolumbar spine revealed that the veteran had 87 degrees of active forward flexion and 92 degrees of passive forward flexion with minimal pain at the extremes. There was no fatigue or lack of endurance and no muscle spasm asymmetry, or weakness, detected. The visual examination of the thoracic spine revealed no obvious scoliosis. The pelvis was level, and there was no lumbar scoliosis. There was moderate muscle spasm at the thoracolumbar junction, bilaterally. Straight leg raising was negative, bilaterally. Motor power in the lower extremities was 5 plus/5 plus and the comprehensive sensory examination of the lower extremities showed a normal dermatomal pattern. Reflexes were two plus and equal at the knee and ankle. The plantar response was downward, bilaterally. Lower extremity measurements were as follows: Calves--13 inches on the right and 12 1/2 inches on the left. The thighs measured 16 inches in circumference, bilaterally, and the veteran's legs were each 36 1/2 inches long. There was no evidence of swelling or deformity. X-rays of the lumbar spine reportedly showed only four nonrib bearing lumbar type vertebra present. Mild facet sclerosis was noted at the lumbosacral junction. X-rays of the thoracic spine reportedly showed an X-shaped scoliosis. Twelve rib bearing thoracic type vertebra were present. There were mild degenerative end plate hypertrophic changes scattered throughout the thoracic spine. Following the examination, the relevant diagnoses were degenerative thoracic scoliosis and lumbar spondylosis. The examiner commented that the veteran was limited in his activities which required repetitive bending, stooping, twisting, or squatting. He was also reportedly limited in activities which required him to carry more than 15 pounds. In an addendum, dated in October 1998, the physician who performed the VA orthopedic examination included the following range of thoracolumbar spine motion: Extension--30 degrees active, 35 degrees passive; lateral bending-- 45 degrees active, 45 degrees passive; and right and left lateral rotation--55 degrees active, 65 degrees passive. In July 1999, the veteran had a hearing at the regional office. He reported that his kidneys hurt but noted that he was not having a problem urinating. He testified that the kidney stones were gone. He stated that his back hurt every day and that he continued to take a hot bath every morning. He also testified that he had difficulty walking two blocks to the store. In August 1999, the veteran underwent an orthopedic examination for the VA. His treatment reportedly consisted of reevaluations and pain medication. He complained of pain at all times and stated that he was required to sleep on the sofa with a board underneath the cushions. He denied the use of a lumbar support, because it bothered him. Reportedly, he occasionally had numbness and tingling in his lower extremities. He stated that since he was last seen in September 1998, he had experienced the onset of bilateral leg pain. On examination, the veteran demonstrated the following range of motion of the lumbar spine: Flexion--85 degrees active, 87 degrees passive; extension--10 degrees active, 12 degrees passive; right and left lateral bending--25 degrees active and passive; and right and left lateral turning--40 degrees active, 55 degrees passive. There was reportedly no pain, fatigue, weakness or lack of endurance with range of motion of the lower back. There was no spasm or weakness in the lower back. There was mild diffuse tenderness throughout the thoracolumbar musculature. There were no postural abnormalities or fixed deformities, and the musculature of the back showed no signs of atrophy or asymmetry. Motor power measured 5 plus/5 plus, bilaterally. A comprehensive sensory examination of the lower extremities revealed a normal dermatomal pattern. Straight leg raising was negative, bilaterally. The reflexes were two plus and equal at the knees, and ankles. The veteran's plantar response was downward, bilaterally. The following lower extremity measurements were reported: Ankles--8 3/4 inches on the right and 8 3/8 inches on the left; calves--12 1/8 inch on the right and 11 3/4 inches on the left; knees--13 1/2 inches, bilaterally; and thighs, 16 inches, bilaterally. The veteran's legs were 36 3/4 inches long on the left and 37 inches long on the right. There was no swelling or deformity. An MRI of the lumbar spine reportedly showed a completely sacralized L5 segment making L4 - L5, the lower most disc. The 12 ribs were hypoplastic. There was a small dorsal disc protrusion at L4-5 without resultant major nerve root compromise, lateralizing slightly to the right. Following the orthopedic examination, the diagnoses were thoracolumbar pain, secondary to a combination of degenerative thoracic scoliosis and L5-S1 degenerative disc disease; and no signs of lumbar radiculopathy. Laboratory testing, performed by the VA in August 1999, revealed that the veteran's red blood cell count was low and that his BUN/creatinine was high. His urea nitrogen was also high. In August 1999, the veteran also underwent an examination of his peripheral nerve for VA compensation and pension purposes. The claims file was reviewed by the examiner. The veteran reported that his back pain had become worse and that he had flare ups from time to time. The pain reportedly became worse when he caught a cold or by prolonged sitting. It was noted that the veteran was unable to exercise. He stated that the pain was constant and that the symptoms were worse in the morning. In addition to pain, he reported weakness, fatigue, and functional loss. He stated that he took pain medication. He denied paresthesia but noted that there were specific nerves involved. On examination, the veteran presented as a thin, almost cachectic appearing man who was in no distress. Sensation was normal and strength was 5/5. When testing the lower extremities, a variable amount of effort was noted. The examiner walked with a broadbased and somewhat peculiar gait. Although he was able to walk on his toes, his legs showed a sudden lapse in a nonphysiologic manner. Such circumstance was also seen with heel walking. The examiner did not see any fasciculations or atrophy, although it was noted that the veteran's legs appeared thin when he walked. Reflexes were two plus and symmetric in the upper extremities and one plus in the lower extremities. The toes were neutral. Sensation was normal to vibration and temperature in both lower extremities. There was no evidence of brain disease or injury, spinal cord disease or injury, cervical disc disease, or trauma to the nerve roots. There was also no specific major nerve involves. There was no paralysis, neuritis, or neuralgia, and there was no muscle wasting or atrophy, other than the thin appearance of the veteran's legs, which was symmetric. The range of lumbar motion was reported as follows: Flexion--50 degrees; extension--20 degrees; and lateral flexion--25 degrees, bilaterally. The examiner found no additional limitation by pain, fatigue, weakness, or lack of endurance. The examiner noted that the veteran complained of pain at the extremes of the range of motion. Electromyographic and nerve conduction studies were essentially normal. The diagnoses were low back pain; scoliosis; and symptom magnification. VA outpatient records, dated from August 1999 to May 2000, show that the veteran continued to complain of back pain. In March 2000, he reportedly passed five kidney stones. An X-ray of the kidney, urethra, and bladder, revealed nephrolithiasis of the left kidney. There was also a small solitary lithiasis at the right kidney. The VA medical records, dated from August 1999 to May 2000, show that the veteran's weight varied from 114.8 pounds to 126 pounds. His systolic readings were between 86 and 124. His diastolic readings were from 50 to 78. VA outpatient treatment records, dated from May 2000 to January 2002 show that the veteran continued to be followed for low back pain and for urologic disability. In May 2001, his BUN/creatinine was high, as was his urea nitrogen. They remained high through testing in September 2001. In October 2000 and June 2001, it was noted that the veteran had passed additional kidney stones. In May 2001, the veteran reported a flare up of his back pain over the left costovertebral angle and right flank areas. From September 2000 to January 2002, the veteran's systolic readings ranged from 95 to 123, and his diastolic readings ranged from 60 to 76. His weight ranged from 119 to 131 pounds. In May 2002, the veteran underwent a VA genitourinary examination. The examiner noted that shortly after entering service, the veteran was found to have bilateral vesicoureteral reflux. He underwent staged reimplants and did well until about 1988, when bilateral renal calculi were first diagnosed. Spontaneous stone passage was the result, and that reportedly increased until 1994. At that time, the veteran was found to have bilateral renal calculi of such size that it was unlikely that he would pass them spontaneously. Attempts were made to pass stents transurethrally, but that was not possible because of the distorted anatomy caused by the reimplants. It was noted that thereafter, the veteran underwent ESWL with success. The examiner found an X-ray in the claims folder, dated in February 1989, which demonstrated a significant loss of renal parenchyma on the right side, indicative of a chronic pyelonephritis. The veteran stated that despite a high fluid intake, the veteran had had increasing episodes of stone passage in recent years, amounting to approximately 10 per year. It was noted that he did not have significant lower urinary tract symptoms, except for some frequency, which could well be attributed to increasing fluid intake. It was also noted that he had co-morbidity of chronic back pain on morphine, etc., unrelated to his urinary tract problems. A physical examination revealed the veteran's abdomen to be soft and tender without palpable organomegaly or masses. There was a well healed low midline incision. External genitalia were unremarkable, and the veteran's prostate gland was small and benign. The impression was status post bilateral ureteral implantation for probable congenital vesicourethral reflux with resultant right pyelonephritis and chronic stone forming problem. The examiner commented that the surgical bilateral reimplants in service were evidently successful in stopping the veteran's congenital vesicourethral reflux but that they did not alter the damage done by the reflux, that is chronic pyelonephritis. The examiner stated that the recurrent stone formation might or might not be related to the problem with reflux and the reimplantation. It was recommended that the veteran have an annual renal ultrasound and X-rays to determine his stone burden and allow a prediction to be made as to whether stone passage was likely to occur spontaneously or whether some intervention was required. In a July 2002 addendum, the VA examiner noted that an ultrasound had been performed. It showed signs of reflux nephropathy in the upper pole of the right kidney. Otherwise, no abnormalities were noted in the upper tracts. There was some residual urine in the bladder, but the examiner did not believe that that related to the problems for which the veteran was seen and could very well be of no significance. In summary, the examiner stated that there were some permanent changes in the right upper pole of the kidney secondary to reflux, thoroughly stable, without any evidence of active renal disease at the time. VA medical records, dated from January 2002 to January 2003 show that the veteran continued to be followed for various disabilities, including back pain and a urologic disorder. His weight was between 104 and 115 pounds. His systolic readings ranged from 80 to 120, and his diastolic readings ranged from 40 to 72. Laboratory studies, performed in February 2002, revealed that the veteran's white blood cell count, uroprotein, BUN/creatinine, urea nitrogen, and creatinine levels were all elevated. The BUN/creatinine was 29, and the creatinine was 1.5. In July 2002, laboratory studies revealed that the veteran's BUN/creatinine, urea nitrogen, and creatinine levels were all within normal limits. His red blood cell count was low. III. Analysis The veteran seeks increased ratings for his service-connected urologic disorder; thoracic spine disability; and lumbar spine disability. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the DC's of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2002). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service- connected disabilities. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present (current rating period) level of disability is of primary concern. Although the recorded history of a disability is for consideration in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). A. Pyelonephritis At the outset of the veteran's claim, pyelonephritis was rated in accordance with 38 C.F.R. § 4.115a, DC 7504 (1989). That code, in turn, directed the evaluator to rate pyelonephritis as hydronephrosis (pyuria required). Hydronephrosis was rated under 38 C.F.R. § 4.115a, DC 7509. A 30 percent rating was warranted for moderately severe impairment, manifested by frequent attacks of colic with infection (pyonephrosis), in which the kidney function was greatly impaired. A higher rating was warranted for severe impairment with infection or involvement of the other kidney. In such cases, hydronephrosis was to be rated as the absence of one kidney with nephritis, infection, or pathology of the other. Removal of one kidney with nephritis, infection, or pathology of the other was rated in accordance with 38 C.F.R. § 4.115a, DC 7500. A 30 percent rating was warranted for the absence of one kidney with the other functioning normally. A 60 percent rating was warranted for the absence of one kidney and mild to moderate impairment of the remaining kidney. The absence of one kidney prior to enlistment in service or the congenital nonfunctioning of one kidney required a deduction of 30 percent from the 60 percent rating under DC 7500. When, under these circumstances, a total disability rating on the basis of unemployability was considered to exist, the claims folder was to be referred to the director of the VA compensation and pension service for the consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). During the pendency of the veteran's appeal, the Rating Schedule was revised with respect to disabilities of the genitourinary system. See 59 Fed. Reg. 2523 (January 18, 1994). That change became effective February 17, 1994. Inasmuch as the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also VAOPGCPREC 3-00 (opinion of the VA General Counsel that the decision in Karnas is to be implemented by first determining whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the former and current versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 1991), can be no earlier than the effective date of that change. The Board must apply only the earlier version of the regulation for the period prior to the effective date of the change.) In this regard, it should be noted that precedential opinions of the VA's General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 14.507 (2002). Under the new regulations, chronic pyelonephritis is rated as renal dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7504. A 30 percent rating is warranted for renal dysfunction manifested by albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. 38 C.F.R. § 4.115a. A 30 percent rating is warranted for a urinary tract infection, manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Poor renal function is to be rated as renal dysfunction. Hypertensive vascular disease (hypertension and isolated systolic hypertension) is rated under 38 C.F.R. § 4.104, DC 7101. A 10 percent rating is warranted when the diastolic pressure is predominantly 100 or more, or; when the systolic pressure is predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when the diastolic pressure is predominantly 110 or more, or; when systolic pressure is predominantly 200 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. 38 C.F.R. § 4.104, DC 7101, Note (1). Ureterolithiasis is rated under 38 C.F.R. § 4.115(b), DC 7510. That disorder is to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: (1) Diet therapy; (2) drug therapy; (3) invasive or noninvasive procedures more than two times a year. In that case, a 30 percent rating is for application. A review of the evidence discloses that the veteran's service-connected pyelonephrosis is manifested primarily by complaints of kidney pain and some permanent changes in the right upper pole of the kidney secondary to reflux. From time to time, he also has abnormal laboratory readings, variously including his white blood cell count, red blood cell count, BUN, uric acid, urea nitrogen, and/or creatinine level. His BUN, however, has always been below 40, and his creatinine level has always been below 4. His primary genitourinary problem is recurrent stone formation which may or may not be related to his service-connected pyelonephritis. His stones recur as often as 10 times a year, and he has received treatment for the recurrent stone formation, including ESWL. Despite such recurrences, both of his kidneys generally function normally. Moreover, there is no evidence of colic; constant albuminuria with some edema; a definite decrease in kidney function; or hypertension of at least 40 percent disabling. In this regard, the veteran's systolic readings have continually been below 160, and his diastolic readings have almost always been below 90. Finally, there is no evidence that the veteran's service- connected urologic disorder is productive of any more than moderately severe impairment under 38 C.F.R. § 4.115a, DC 7504, which was in effect prior to February 14, 1994. Indeed, the most recent examiner found the veteran's pyelonephritis to be thoroughly stable with no evidence of active renal disease. Therefore, there is no basis for a schedular rating in excess of 30 percent under the old or new regulations. Accordingly, this portion of the appeal must be denied. B. The Thoracic Spine The veteran's thoracic spine disorder is rated in accordance with 38 C.F.R. § 4.71a, DC 5291. A 10 percent rating is warranted for severe limitation of motion. The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter Court) has considered the question of functional loss as it relates to the adequacy of assigned disability ratings. DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that 38 C.F.R. § 4.40 required consideration of factors such as lack of normal endurance, functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination. Moreover, the Court stated that there must be a full description of the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10. A review of the evidence discloses that the veteran's thoracic spine disability is manifested primary by complaints of pain and X-ray evidence of scoliosis. His range of motion, however, is generally good, and there is no evidence of fatigue, weakness, lack of coordination, heat, discoloration, or swelling. Such findings are contemplated by his 10 percent rating under 38 C.F.R. § 4.71a, DC 5291. That is the highest schedular rating permitted under that code. Therefore, the Board has considered the potential applicability of other codes to rate his thoracic spine disability; however, he does not demonstrate the residuals of a fracture (DC 5285); ankylosis (DC 5288); or intervertebral disc syndrome (DC 5293) necessary for the implementation of those codes. Under such circumstances, the Board will consider the possibility of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2002). Such an evaluation will be discussed below. C. The Lumbar Spine Limitation of motion of the lumbar spine is rated under 38 C.F.R. § 4.71a, DC 5292. A 10 percent rating is warranted for slight limitation of motion of the lumbar spine. A 20 percent rating is warranted for moderate limitation of motion of the lumbar spine, while a 40 percent rating is warranted for severe limitation of motion. Lumbosacral strain is rated in accordance with the provisions of 38 C.F.R. § 4.71a, DC 5295. A noncompensable rating is warranted for slight subjective symptoms only. A 10 percent rating is warranted for characteristic pain on motion. A 20 percent rating is warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating is warranted for severe impairment manifested by listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A review of the evidence discloses that the veteran's low back disability is manifested primarily by complaints of pain on motion and stiffness, particularly on awakening. He maintains that such disability precludes prolonged standing, walking, or sitting and that he has difficulty negotiating stairs. He also states that he cannot perform simple chores such as changing a tire. The veteran maintains that his back disability also causes significant limitation of motion. Although a July 1991 record indicated that his range of lumbar spine motion was moderately diminished, he has generally been able to flex his spine to at least 70 degrees and to extend it to at least 10 degrees. Indeed, the preponderance of the evidence shows no more than slight limitation of motion. Moreover, there is no evidence of muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in the standing position. The preponderance of the is also negative for any fatigue, weakness, atrophy, lack of coordination, heat, discoloration, or swelling associated with the veteran's lumbar spine disability. Although the most recent orthopedic examination noted that the veteran walked with a peculiar gait, the preponderance of the shows that his gait is normal. Accordingly, he more nearly approximates the criteria for a 10 percent rating under DC 5292 or 5295. In arriving at this decision, the Board has considered the possibility of a higher schedular rating under other potentially applicable DC's. As with his thoracic spine, he does not demonstrate the residuals of a fracture (DC 5285); ankylosis (DC 5289); or intervertebral disc syndrome (DC 5293) necessary for the implementation of those codes. Although he reports radiating pain, the preponderance of the evidence is against a findings intervertebral disc syndrome. An EMG and nerve conduction studies are negative for any objective evidence of radiating pain; and his motor power, sensation, reflexes, and other neurologic processes are generally normal. IV. Extraschedular Considerations The Board has also considered the possibility of assigning an extraschedular evaluation for any or all of the disabilities at issue. The evidence, however, does not show 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. Although the veteran is unemployed, there is no evidence that his unemployment is due solely to his service-connected pyelonephrosis, thoracic spine disability, and/or his lumbar spine disability. Moreover there is no evidence of frequent hospitalization for those disorders. Rather, the record shows that the various manifestations of each of those disabilities are those contemplated by the regular schedular standards. It must be emphasized that the disability ratings are not job specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations of illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Absent evidence to the contrary, the Board finds no reason for further action under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a rating in excess of 30 percent for the residuals of a bilateral urethral transplant secondary to pyelonephritis, is denied. Entitlement to a rating in excess of 10 percent for thoracic scoliosis with degenerative spurring is denied. Entitlement to a rating in excess of 10 percent for lumbar scoliosis with degenerative spurring is denied. ____________________________________________ G. H. SHUFELT Veterans Law Judge, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.