Citation Nr: 0707875 Decision Date: 03/15/07 Archive Date: 04/09/07 DOCKET NO. 97-17 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome prior to January 8, 2004. 2. Entitlement to a rating in excess of 60 percent for intervertebral disc syndrome beginning January 8, 2004. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from January 1952 to January 1955, July 1955 to August 1955 and from December 1957 to July 1979. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in New Orleans, Louisiana, (hereinafter RO). In May 2000, a hearing was held at the RO before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The case was previously remanded by the Board, most recently in July 2004, and the case is now ready for appellate review. With regard to an additional issue previously before the Board; namely, entitlement to service connection for a circulatory disability claimed as result of cold exposure, subsequent to the July 2004 Board remand, the RO found in an October 2006 rating decision that while peripheral vascular disease was not the result of cold exposure, it was a manifestation of the veteran's service connected diabetes. As such, the RO included peripheral vascular disease as part of the service connected disability attributed to Diabetes Mellitus, rated 100 percent disabling. Given the resolution of this matter by the RO as described, and the lack of any specific argument from the veteran that he wishes further appellate review with respect to the issue of entitlement to service connection for a circulatory disability, the Board finds that the only issues remaining on appeal are as listed on the title page. FINDINGS OF FACT 1. Prior to January 8, 2004, the record did not reveal reliable objective evidence of persistent symptoms compatible with sciatic neuropathy with characteristic pain or other manifestations indicative of pronounced disability due to intervertebral disc syndrome. 2. Prior to January 8, 2004, the record did not demonstrate incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during a 12 month period. 3. There are no vertebral fractures and there is no spinal ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for intervertebral disc syndrome prior to January 8, 2004, are not met. 38 U.S.C.A. §§ 1155, 5100-5013A, 5106, 5107, 5110(a) (West 2002); 38 C.F.R. 4.71a, Diagnostic Code (DCs) 5293 (2001); DC 5243 (2006). 2. The criteria for a rating in excess of 60 percent for intervertebral disc syndrome beginning January 8, 2004, are not met. 38 U.S.C.A. §§ 1155, 5100-5013A, 5106, 5107 (West 2002); 38 C.F.R. § 4.71a, DCs 5285, 5286, 5243 (2001); DCs 5240, 5243 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist With respect to the matter on appeal, VA has met the notification and assistance duties under applicable statute and regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). With regard to the duty to notify, multiple notifications, to include a July 2004 letter, satisfied the duty to notify provisions. As for the duty to assist, the veteran's service medical records have been obtained, along with VA medical records. The veteran has been afforded VA Compensation and Pension examinations, to include the examination requested by the Board in the July 2004 Board remand. There is no indication in the record that additional evidence relevant to the matters decided herein is available and not part of the claims file. 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, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). II. Legal Criteria/Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During the pendency of this appeal, VA revised the criteria for diagnosing and evaluating the spine, effective September 23, 2002, and September 26, 2003. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The RO addressed the veteran's claim for an increased rating for intervertebral disc syndrome under both the old criteria and the current regulations. Therefore, there is no prejudice to the veteran for the Board to apply the regulatory revisions in the adjudication below. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under the previous rating criteria for intervertebral disc syndrome, a 60 percent evaluation was available under that diagnostic code for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a; DC 5293 (2001). This was the highest assingnable rating under the old criteria. A rating in excess of 60 percent for a disability of the spine under the old criteria required residuals of a vertebral fracture (DC 5285) or ankylosis as described by DC 5286. Under the revised rating criteria for spinal diseases and injuries effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted, while a 40 percent rating is for application where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 20 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is applied. 38 C.F.R. § 4.71a, DC 5243 (effective on and after September 23, 2002). The highest assignable rating under DC 5243 (2006) is 60 percent. Note (1): For purposes of evaluations under DC 5243, 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. A rating in excess of 60 percent under the General Rating Formula for Diseases and Injuries of the Spine requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5240 (2006). The notes to the revised rating criteria for spine disabilities state that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) following General Rating Formula for Diseases and Injuries of the Spine. With the above criteria in mind, the pertinent facts will be briefly summarized. Service connection for residual disc disease following a right laminectomy was granted by a November 1979 rating decision. A 20 percent rating was assigned under DC 5293. Following a September 1981 VA examination which showed the veteran describing "practically no pain" in his back, a November 1981 rating decision reduced the rating under DC 5293 to 10 percent. The rating was increased to 20 percent effective from October 13, 1995 by an August 1997 rating decision. This action followed a June 1997 VA examination in which the veteran described back pain to a level of "7" on a scale from 1 to 10. The 20 percent rating was continued until a rating decision promulgated in October 2006, after the most recent Board remand of July 2004. This decision increased the rating under DC 5293 to 60 percent from January 8, 2004, which was the date of a VA Compensation and Pension Examination afforded the veteran. This examination revealed decreased sensation in the lower extremities, and the examiner noted that the veteran "does have evidence of [a] spinal cause for his claudication." The examiner also noted that the veteran's leg numbness "could be" the result of "radicular pain from his back." Based on these findings, the RO determined that the disability associated with the veteran's back included "persistent symptoms compatible with sciatic neuropathy with characteristic pain." As such, the RO determined that the criteria for a 60 percent rating for intervertebral disc syndrome were met under the criteria for rating intervertebral disc syndrome previously in effect under DC 5293 (2001). Turning first to the issue of whether a rating in excess of 20 percent was warranted prior to January 8, 2004, a review of the record reveals no reliable clinical evidence dated prior to the VA examination of that date, which most critically included a medical opinion linking loss of lower extremity sensation to spinal disability, that objectively documents a disability consistent with "persistent symptoms compatible with sciatic neuropathy with characteristic pain or other manifestations" or otherwise a level of disability descriptive of "pronounced disability" due to intervertebral disc syndrome. Prior to January 8, 2004, the record also did not demonstrate incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during a 12 month period. As such, a rating in excess of 20 percent for intervertebral disc syndrome prior to January 8, 2004, cannot be assigned under either the old or revised criteria for rating intervertebral disc syndrome. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 4.71a, DC 5293 (2001); DC 5243 (2006). As for a rating in excess of 60 percent from January 8, 2004, the highest assignable rating for intervertebral disc syndrome under the old or revised criteria is 60 percent. 38 C.F.R. § 4.71a, DC 5293 (2001); DC 5243 (2006). Reviewing other potentially applicable diagnostic codes, increased compensation under the old criteria would require a vertebral fracture under DC 5285 or ankylosis as described by DC 5286, neither of which is demonstrated. As a rating in excess of 60 percent under the revised criteria also requires ankylosis, an increased rating also cannot be assigned as there is no evidence of ankylosis. To award additional compensation on the basis of "separate" orthopedic, neurologic or other manifestations would also not be appropriate, as it would be tantamount to "pyramiding" under 38 C.F.R. § 4.14. Brady v. Brown, 4 Vet. App. 203, 206 (1993)("[T]he rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity.") Also weighed by the Board were the provisions of 38 C.F.R. § 4.40 with regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). The objective evidence however simply does not reveal findings which would warrant an increase in compensation under these provisions in excess of the 60 percent rating currently assigned. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2006). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. Ratings in excess of that currently assigned are provided for certain manifestations of the veteran's service- connected intervertebral disc residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran has not required frequent hospitalizations due to this disorder, and his service-connected residuals attributable to intervertebral disc syndrome have not shown functional limitation beyond that contemplated by the 60 percent rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. Finally, in reaching the conclusions above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the assignment of increased compensation for the service-connected intervertebral disc syndrome, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome prior to January 8, 2004, is denied. Entitlement to a rating in excess of 60 percent for intervertebral disc syndrome beginning January 8, 2004, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs