Citation Nr: 0726310 Decision Date: 08/22/07 Archive Date: 08/29/07 DOCKET NO. 05-08 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation for low back disability, currently rated at 40 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served from May 1975 to February 1976. This matter arises from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran testified at the RO before the undersigned in June 2006. The Board remanded the case in November 2006 for further development. FINDING OF FACT The veteran's spine disability is manifested by degenerative disc disease, radiculopathy in the right lower extremity, limitation of motion, pain, and multiple neurological deficits. CONCLUSION OF LAW The criteria for a 60 percent rating for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, 38 C.F.R. § 4.71a Diagnostic Code 5292 (effective prior to September 26, 2003), Diagnostic Code 5293 (effective from to September 23, 2002 to September 25, 2003), Diagnostic Code 5295 (effective prior to September 25, 2003), Diagnostic Code 5243 (effective from September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with complete notice in March 2006 and January 2007, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a March 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology and severity of disability, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. B. Analysis The veteran has been in receipt of service connection for a low back disability since separation from service in February 1976, and in receipt of a 40 percent rating under Diagnostic Code 5293 since March 1991. A decision of the Social Security Administration (SSA) granted the veteran disability insurance benefits - effective April 2002, due to affective disorders and discogenic and degenerative back disorders. On February 13, 2003, the veteran requested an increased rating. At the veteran's hearing in June 2006, the veteran and his representative argued that the application of the "new" criteria, which affords separate ratings for each neurological deficit, provides the veteran with a combined rating in excess of 60 percent. They further noted that such a rating can only be applied effective the date the regulations were enacted, and argued that the veteran is entitled to a 60 percent rating under the "old" criteria, Diagnostic Code 5293, due to the severe neurological symptoms he experience during course of this appeal. In a March 2007 rating decision, the veteran's low back disability was categorized under Diagnostic Code 5237, and the 40 percent rating was retained. He was granted service connection for bladder incontinence rated 20 percent disabling, bowel incontinence rated 10 percent disabling, radiculopathy of the left lower extremity rated 10 percent disabling and radiculopathy of the right lower extremity. There has been no disagreement with the separately assigned ratings for organic or neurological impairment under the new criteria. Hence, the matter is limited to the evaluation of the orthopedic manifestations of the veteran's low back disability. Disability evaluations are determined by the application of a schedule of ratings that is based on average industrial impairment. 38 U.S.C.A. § 1155. The veteran filed his claim prior to September 23, 2002 and VA has evaluated the veteran's back condition under many diagnostic codes. Separate diagnostic codes identify the various disabilities. While the veteran's appeal was pending, VA revised regulations for evaluating disabilities of the spine. Accordingly, the veteran's claim must be adjudicated under the old regulation, as well as under the new diagnostic code for the period beginning on the effective date of the new provisions. Under Diagnostic Code 5293 (intervertebral disc syndrome) (in effect prior to September 23, 2002), pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief, warrants a 60 percent evaluation. Severe intervertebral disc syndrome, with recurring attacks and with intermittent relief, warrants a 40 percent evaluation. . The veteran's low back disability warrants a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5293. Throughout the course of this appeal from 2003, the veteran has been diagnosed with degenerative disc disease that seriously limits his range of motion. The veteran constantly experiences pain due to this disorder and has been diagnosed as having radiculopathy of the both lower extremities, as a symptom of thereof. The veteran experiences little relief from his radiculopathy, and computer axial tomography and electromyography confirm the veteran's neurological problems. Because the veteran has been diagnosed as having degenerative disc disease that severely limits his motion and as having multiple neurological problems associated therewith, the veteran's condition warrants a 60 percent rating. If a veteran is in receipt of the maximum disability rating available under a diagnostic code for limitation of motion, consideration of functional loss due to pain is not required. Johnson v. Brown, 10 Vet. App. 80 (1997). Analysis under any other applicable Diagnostic Codes under the old criteria does not provide a greater rating. The regulations regarding intervertebral disc syndrome were revised effective September 23, 2002. Under the revised regulations, 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 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Using the criteria effective September 23, 2002, for evaluating intervertebral disc syndrome, with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted, with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted, 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 evaluation is warranted. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. When evaluating based on chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 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 based on chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (in effect from September 23, 2002 until September 26, 2003). The regulations regarding diseases of and injuries to the spine, to include intervertebral disc syndrome, were again revised effective September 26, 2003. Under these regulations, the back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. With unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent evaluation is warranted. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, a 40 percent evaluation is warranted. Under the criteria effective today, the VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The VA is to round each range of motion measurement to the nearest five degrees. For VA compensation purposes, "unfavorable ankylosis" is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The VA is to separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the current criteria, in rating intervertebral disc syndrome based on incapacitating episodes, with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. 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 evaluation is warranted. For purposes of assigning evaluations under Diagnostic Code 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. 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 based on 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5243). The veteran is not entitled to an increased rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 because there is no evidence of ankylosis of the spine or entire thoracolumbar spine. All examination and treatment records note that the veteran spine retains a degree of flexibility, albeit limited. Likewise, the veteran is not entitled to a higher rating based on incapacitating episodes. There is no evidence that the veteran's low back disorder has caused him at least six weeks of bed rest during the past twelve months prescribed by a physician. Therefore, a rating higher than 40 percent would not be warranted. Id. ORDER Entitlement to a 60 percent rating for a low back disorder is granted subject to the laws and regulations governing payment of monetary awards. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs