Citation Nr: 0607373 Decision Date: 03/15/06 Archive Date: 03/29/06 DOCKET NO. 99-00 088A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for low back strain for the period prior to September 19, 1997. 2. Entitlement to a rating in excess of 20 percent for low back strain for the period beginning September 19, 1997. 3. Entitlement to an effective date earlier than February 11, 1997, for an award of a total disability rating based on unemployability (TDIU). 4. Whether the RO committed clear and unmistakable error (CUE) in a November 1991 rating decision by failing to assign a rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 5. Whether the RO committed CUE in failing to notify the veteran that his service-connected PTSD is a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Saadat INTRODUCTION The veteran had active military service from January 1967 to September 1979. This case comes to the Board of Veterans' Appeals (Board) from RO rating decisions. FINDINGS OF FACT 1. For the period prior to September 19, 1997, the veteran showed no more than slight limitation of motion of the lumbar spine, nor any pattern of muscle spasm on extreme forward bending with unilateral loss of lateral spine motion in a standing position, or ankylosis of the lumbar spine. 2. For the period beginning September 19, 1997, the veteran has not shown severe limitation of motion of the lumbar spine, nor any severe listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion, abnormal mobility on forced motion, ankylosis of the lumbar spine, or forward flexion of the thoracolumbar spine limited to 30 degrees or less. 3. The veteran did not meet the schedular criteria for TDIU benefits prior to February 11, 1997, and no evidence shows that that his service-connected disabilities combined to preclude employment prior to February 11, 1997. 4. The veteran has failed to clearly and specifically set forth alleged errors of fact or law in the November 1991 RO decision, the legal or factual basis for the allegations of error, and why the result (the grant of a 30 percent rating for PTSD) would have been different but for such alleged errors. 5. The veteran has failed to clearly and specifically set forth alleged errors of fact or law in the RO's notifications to him concerning the nature of his service-connected PTSD disability. CONCLUSIONS OF LAW 1. The criteria have not been met for a rating in excess of 10 percent for low back strain, for the period prior to September 19, 1997. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5289, 5292, 5295 (as in effect prior to September 26, 2003). 2. The criteria have not been met for a rating in excess of 20 percent for low back strain, for the period beginning September 19, 1997. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5289, 5292, 5295 (as in effect prior to and beginning September 26, 2003). 3. The legal criteria have not been met for an effective date for TDIU prior to February 11, 1997. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2005). 4. The veteran has failed to raise a valid claim of CUE in the November 1991 rating decision. 38 C.F.R. § 3.105(a) (2005). 5. The veteran has failed to raise a valid claim of CUE relating to the RO allegedly failing to notify him that PTSD is a psychiatric disability. 38 C.F.R. § 3.105(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims concerning low back strain In June 1995, the veteran filed a written statement seeking a rating in excess of 10 percent for his service-connected low back strain. By a March 1996 rating decision, the RO denied the increased rating and the veteran perfected an appeal. By a November 2002 rating decision, however, the RO increased the rating for low back strain to 20 percent, effective from September 19, 1997. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Effective September 26, 2003, VA promulgated new regulations for rating lumbosacral strain. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board will consider all prior and revised rating criteria but of course, revised rating criteria may not be applied to claims prior to the effective date of the amended regulation. See 38 U.S.C.A. § 5110(g); Rhodan v. West, 12 Vet. App. 55 (1998). A. Rating in excess of 10 percent prior to September 19, 1997 The veteran's spine disability includes degenerative disc disease. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Under the prior rating criteria of Diagnostic Code 5292, a 10 percent rating is assigned for "slight" limitation of motion of the lumbar spine, and a 20 percent rating is assigned for "moderate" limitation of motion. Yet the record does not reflect that a rating in excess of 10 percent is warranted under this criteria. At an October 1996 VA examination, the veteran could forward flex to 110 degrees, extend to 25 degrees, right flex to 35 degrees, left flex to 30 degrees, rotate to the right to 40 degrees, and rotate to the left to 35 degrees. Such spine mobility hardly constitutes more than "slight" limitation of motion. The clinical evidence for this period also does not reflect a pattern of muscle spasm on extreme forward bending with unilateral loss of lateral spine motion in a standing position such that would warrant a 20 percent rating under the prior rating criteria for lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Code 5295. While the veteran complained of back muscle spasms in a June 1995 written statement, there was no evidence of unilateral loss of lateral spine motion (see, for example, the ranges of motion detailed above). A higher rating under prior rating criteria of Diagnostic Codes 5289 is not warranted because no evidence has been presented of ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5289. B. Rating in excess of 20 percent beginning September 19, 1997 By its November 2002 rating decision, the RO assigned a 20 percent rating under the prior Diagnostic Code 5295 (lumbosacral strain), effective from September 19, 1997. Under the prior rating criteria, a 40 percent rating is warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Yet a 40 rating is not warranted under this criteria for the period beginning September 19, 1997. Range of motion was within normal limits at a March 2002 VA outpatient visit. At a January 2005 VA examination, flexion was to 70 degrees (with pain), extension was to 25 degrees with pain, lateral flexion was to 30 degrees (without pain), and lateral rotation was to 30 degrees (without pain). Despite the veteran's complaints of pain, this level of mobility hardly constitutes "severe" limitation of motion of the lumbar spine. Moreover, the clinical evidence above does not reflect severe listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion, or abnormal mobility on forced motion which would warrant a 40 percent rating under the prior criteria for lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Finally, nothing in the record reflects that the veteran has had (since September 19, 1997) any ankylosis of the lumbar spine, so evaluation under the prior rating criteria of Diagnostic Codes 5289 would be inappropriate. 38 C.F.R. § 4.71a, Diagnostic Codes 5289. Under the revised Diagnostic Code 5237, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5237. Yet, again, the veteran has never displayed such a limited forward flexion, nor any ankylosis. Thus a higher rating under this criteria is not warranted. Any associated objective neurological abnormalities (including but not limited to bowel or bladder impairment) are to be evaluated separately under appropriate diagnostic code. 38 C.F.R. § 4.71, Diagnostic Code 5237 (Note (1)). The veteran has never complained of or been treated for bowel or bladder impairment with regard to his back condition. In fact, at a January 2005 VA examination, he said his back pain was nonradiating, and he denied any numbness, bladder complaints, bowel complaints, or erectile dysfunction. At his May 2005 Board hearing, he denied any involvement of his lower extremities. Thus, separate evaluations for any associated neurological abnormalities is not warranted. C. DeLuca and extraschedular considerations Functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 must be considered in the case of disabilities involving a joint rated on the basis of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the veteran has intermittently sought treatment for back pain over the years, he has consistently been able to display at least some range of motion of the lumbar spine without pain (as detailed above). Moreover, the 20 percent rating that he current has been assigned (which also contemplates limitation of motion) more than adequately compensates for any potential functional loss due to pain on use or during flare-ups, or due to weakness, fatigability, or incoordination. Moreover, following his January 2005 examination, a VA physician concluded that no additional limitations were noted with repetition of movement during the examination that were related to pain, fatigue, incoordination, weakness, or lack of endurance. Additional compensation under 38 C.F.R. §§ 4.40, 4.45 is simply not warranted. When a disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. 38 C.F.R. § 3.321(b)(1). There is no evidence that the veteran has been hospitalized for his back disabilities. Despite his apparent back pain, the veteran continued to work - for years - as a bus driver. He was left this work in early 1997 but (as detailed below) this was apparently due to psychiatric symptoms. Certainly no evidence has been presented reflecting that his spine disability has impacted his ability to work to the extent that would warrant an extraschedular rating. Indeed, the schedular ratings are already based upon the average impairment of earning capacity, and are intended to be considered from the point of view of the veteran's working or seeking work. An extraschedular rating is not warranted. D. Conclusion As detailed above, the preponderance of the evidence is against the claims for a rating in excess of 10 percent for low back strain for the period prior to September 19, 1997, and a rating in excess of 20 percent for low back strain for the period beginning September 19, 1997. 38 U.S.C.A. § 5107(b). III. Effective date earlier than February 11, 1997, for an award of TDIU The veteran filed a claim for a TDIU (on a VA Form 21-8940) on January 22, 1997. On this form, the veteran indicated that he had worked as a bus driver for Greyhound Lines from April 1981 to June 2, 1994, and that he had worked part time for Central Texas Trailways (CTT) beginning in September 1995. He asserted that Greyhound had terminated him for not having disclosed that he had a psychiatric disability (i.e., PTSD) during employment examinations. At a May 1997 local hearing, the veteran testified that he had lost his job at CTT in March 1997 due to lack of certification based on a psychiatric illness. By a May 1997 rating decision, the RO granted a TDIU, effective from April 1, 1997. In a June 1997 memorandum, the veteran's representative asserted that the effective date for the TDIU should have been June 2, 1994. In a June 1997 rating decision, the RO granted an effective date for the TDIU to February 11, 1997 (the same effective date assigned by the RO for a 70 percent rating for PTSD, as detailed in a May 1997 supplemental statement of the case). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. A TDIU claim is a claim for increased compensation and the same effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award of increased compensation can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). The award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98. A total disability rating may be assigned where the schedular rating is less than total, and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. As noted above, the veteran's formal claim for TDIU was made on January 22, 1997. At the time of his application, the veteran's service-connected disabilities (as reflected by a May 1995 rating decision) were as follows: PTSD (rated as 50 percent disabling), left spinal nerve palsy (rated as 20 percent disabling), low back strain (rated as 10 percent disabling), fracture of the right fourth toe (rated as noncompensably disabling), fracture of the right little finger (rated as noncompensably disabling), hemorrhoids (rated as noncompensably disabling), laceration of the left wrist (rated as noncompensably disabling), pseudofolliculitis barbae of the face and neck (rated as noncompensably disabling), and tinea cruris (rated as noncompensably disabling). Thus, the veteran did not meet the schedular requirements for a TDIU at the time of his application on January 22, 1997. (His PTSD rating was later raised - in May 1997 - to 70 percent, effective from February 11, 1997). Even had the veteran met the schedular requirements at the time of his January 1997 application, the evidence reflects that he was working then (as well as the year before). In fact, a June 1997 letter from CTT confirms that the veteran worked there on various dates between February 10, 1995, and February 22, 1997. There is certainly no competent evidence showing that the veteran was unable to obtain and retain substantially gainful occupation (due to his service- connected disabilities) prior to February 22, 1997. However, the RO made the effective date February 11, 1997, the same effective date as a 70 percent rating for PTSD. Thus, the veteran has received the earliest possible effective date permitted by law since his service-connected PTSD results in his unemployability, and his claim for an earlier effective date must be denied. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 4.16. IV. CUE claims The veteran was notified of a November 1991 rating decision (denying a rating in excess of 30 percent for PTSD) and his appellate rights by means of a December 1991 letter. He did not disagree with this decision and it is therefore final. See 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d) and 20.302(a). He has raised two CUE claims. First, the veteran argues that the RO committed CUE by failing to properly weigh the evidence in its November 1991 rating decision denying a rating in excess of 30 percent for PTSD. He argues that service medical records showed that he was unfit for field duty or providing security of other soldiers, and that - somehow - this entitled him to a higher rating nearly twenty years later. Second, the veteran has claimed that the RO committed CUE (generally) in that it did not explicitly advise him over the years that his PTSD (service connected since June 1990) was a psychiatric disability, and that as a result, he failed to inform his employer that he had a psychiatric disability. The veteran alleges that he was fired when it was discovered that he had lied about not having a psychiatric disability. (The veteran originally raised this CUE claim with respect to his service-connected PTSD, low back, and knee disabilities, but later clarified - at his Board hearing - that the CUE claim was actually only with respect to his PTSD). A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the claimant is notified of the decision. 38 C.F.R. § 3.104(a). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority or except as provided in 38 C.F.R. § 3.105. See also 38 U.S.C.A. § 5109A. In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the United States Court of Appeals for Veterans Claims (CAVC) set forth a three-pronged test to be used in determining whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time of the prior determination; and (3) a determination that there was [CUE] must be based on the record and law that existed at the time of the prior adjudication in question. The CAVC has further stated that: [CUE] is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error . . . . If a claimant-appellant wishes to reasonably raise [CUE] there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be [CUE] on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a [CUE] claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Id. at 44; see also Russell, 3 Vet. App. 310. In his CUE claim concerning the November 1991 rating decision, the veteran has not argued that any statutory or regulatory provisions were incorrectly applied. Moreover, he has not articulated any allegation with the specificity required to demonstrate CUE on its face. He has not provided persuasive reasons explaining why the result of the November 1991 RO rating decision would have been manifestly different but for the alleged error. He has not alleged that the facts contained in the record at the time of the November 1991 rating decision were incorrect in any manner. At best, the veteran's statements amount to no more than a broad allegation of a failure to follow the rating criteria, or a general, unspecific error, which cannot form the basis of a CUE claim. As to his other, more general CUE claim that the RO failed to notify him that PTSD is a psychiatric disability (a curious claim, considering that the veteran sought psychiatric treatment at a VA mental hygiene clinic for years), the CAVC has rejected as being too broad general and unspecified allegations of error based on the failure of duty to assist. See Fugo, 6 Vet. App. at 44. The issue with these CUE claims is a legal one, that is, whether the veteran has met the legal requirements for pleading CUE. The facts are not in dispute, and application of the law to the facts is dispositive. In short, neither the veteran nor his representative has identified any error of fact, any error in the application of the law, or any error in the failure of the duty to assist such that, but for the error, the result would have been manifestly different. The veteran has not met his responsibility of supporting his claims of CUE and therefore the Board dismisses them. V. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The CUE claims are legal challenges to prior RO decisions and do not involve the submission of additional evidence because any finding of CUE must be based on the record and law that existed at the time of the rating decision in question. Russell v. Principi, 3 Vet. App. 310 (1992). Thus, the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to motions alleging CUE in prior VA decisions. See Parker v. Principi, 15 Vet. App. 407 (2002). The Board will, however, discuss the notice and assistance requirements as they apply to the claim for increased rating for a low back disability and for an earlier effective date for the grant of TDIU. First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In an April 2003 letter, VA advised the veteran of the first, second and third elements required by Pelegrini II. While he has never been explicitly asked to provide "any evidence in [his] possession that pertains" to his claims, he has effectively been notified of the need to provide such evidence. The April 2003 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. Moreover, a November 2002 supplemental statement of the case contained the complete text of 38 C.F.R. § 3.159(b)(1), which includes the "any evidence in the claimant's possession" language. The veteran has been adequately informed of the need to submit relevant evidence in his possession. Although proper notice was ultimately provided after the initial adjudication of the veteran's claims, this was harmless error. VA satisfied its notice requirements by November 2002 and readjudicated his claims in a May 2003 supplemental statement of the case. VA has also provided him every opportunity to submit evidence, argue for his claims, and respond to VA notices. With respect to the duty to assist, numerous VA outpatient records are in the file. The veteran underwent several VA examinations (and the reports of these examinations have been reviewed). He has not indicated that there are any outstanding records pertaining to his claims. VA has satisfied its duties to notify and assist and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the veteran is not prejudiced by the Board's adjudication of his claims. ORDER A rating in excess of 10 percent for low back strain, for the period prior to September 19, 1997, is denied. A rating in excess of 20 percent for low back strain, for the period beginning September 19, 1997, is denied. An effective date earlier than February 11, 1997, for an award of TDIU, is denied. The claim that the RO committed CUE in a November 1991 rating decision, by failing to assign a rating in excess of 30 percent for PTSD, is dismissed. The claim that the RO committed CUE in failing to notify the veteran that his service-connected PTSD is a psychiatric disability, is dismissed. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs