Citation Nr: 1046376 Decision Date: 12/13/10 Archive Date: 12/20/10 DOCKET NO. 06-20 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for compression deformity of the 11th and 12th thoracic vertebrae. 2. Entitlement to an evaluation in excess of 10 percent for hypertension with transient ischemic attack. 3. Entitlement to an evaluation in excess of 10 percent for left nasal airway obstruction. 4. Entitlement to an initial evaluation in excess of 60 percent for abdominal aortic aneurysm prior to June 9, 2006 and a compensable evaluation from May 1, 2009. 5. Entitlement to an effective date earlier than August 26, 2003, for a total disability rating for compensation purposes based on individual unemployability (TDIU). 6. Entitlement to an effective date earlier than August 26, 2003, for the grant of Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from November 1955 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November and December 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that during the course of the appeal, in a November 2008 rating action, the RO proposed to reduce the Veteran's disability evaluation for his service-connected abdominal aortic aneurysm. In the same rating decision, the RO also proposed to terminate the award of TDIU and eligibility for Chapter 35 dependents' educational benefits (if the Veteran no longer met the schedular criteria for these benefits due to proposed reduction in service-connected disorders). In a February 2009 rating decision, the RO reduced the rating for abdominal aortic aneurysm, status-post resection and grafting, from 100 percent to noncompensable, effective May 1, 2009 and terminated the Veteran's award of TDIU and eligibility for Chapter 35 dependents' educational benefits, effective May 1, 2009. The evidence does not indicate, nor does the Veteran contend, noncompliance with the procedural requirements for the rating reductions or the propriety of the reductions and therefore these issues are not currently on appeal and will not be discussed further. Moreover, the Board will only focus on the abdominal aortic aneurysm claim as that of an increased evaluation. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's thoracic spine disability has been manifested by no more than moderate limitation of motion with flexion significantly greater than 30 degrees. 2. Throughout the rating period on appeal, the Veteran's hypertension has not been manifested by diastolic pressure predominantly 110, or more or by systolic pressure predominantly 200 or more. 3. Throughout the rating period on appeal, the Veteran has been in receipt of the maximum schedular rating for his left nasal airway obstruction. 4. The Veteran's abdominal aortic aneurysm was not shown to be symptomatic or 5 centimeters (cms.) or more in diameter prior to June 9, 2006 and from May 1, 2009, it does not preclude exertion. 5. It is not shown that the Veteran was unable to engage in substantial gainful activity prior to August 26, 2003, due to his service-connected disabilities. 6. Before August 26, 2003, the Veteran was not eligible for DEA benefits pursuant to 38 U.S.C. Chapter 35 as he did not have a permanent and total disability based on a service-connected disability. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria for an evaluation in excess of 20 percent for compression deformity of the 11th and 12th thoracic vertebrae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5291, 5293, 5295 (as in effect prior to September 26, 2003) and 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5242, 5243 (effective from September 26, 2003). 2. Throughout the rating period on appeal, the criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.104, Diagnostic Code 7101 (2010). 3. Throughout the rating period on appeal, the criteria for disability rating in excess of 10 percent for left nasal airway obstruction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.96, 4.97, Diagnostic Code 6502 (2010). 4. The criteria for an initial evaluation in excess of 60 percent for abdominal aortic aneurysm prior to June 9, 2006 and a compensable evaluation from May 1, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7110 (2010). 5. An effective date earlier than August 26, 2003, for the grant of TDIU is not warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010). 6. An effective date earlier than August 26, 2003, for the award of DEA benefits is not warranted. 38 U.S.C.A. §§ 3501, 3512 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board finds that in this case the requirements of 38 U.S.C.A. §§ 5103 and 38 U.S.C.A. § 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. With respect to the claims of entitlement to increased ratings for the thoracic spine, hypertension and left nasal airway obstruction, VA notified the Veteran in April and December 2003 and September 2004 correspondence of the information and evidence needed to substantiate and complete his claims of entitlement to increased ratings, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. He was provided notice of how effective dates are determined in March 2006 correspondence. The claims were readjudicated in September 2008. Regarding the claim of entitlement to increased initial ratings for abdominal aortic aneurysm, as service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Similarly, with regard to the earlier effective date claims, as entitlement to TDIU and Chapter 35 dependents' educational benefits had been established, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Regarding the duty to assist, the claims file contains the Veteran's original applications for compensation benefits, service treatment records, correspondence, and VA and private treatment reports that are relevant to the issues before the Board. The Veteran has not indicated that there are any outstanding documents to be associated with the file that would be relevant to these claims. VA has also fulfilled its duty to assist the Veteran in affording VA examinations when necessary. The Veteran was provided the opportunity to meaningfully participate in the prosecution of his claims, and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of the appeal. In sum, VA has substantially complied with the notice and assistance requirements; and the Veteran is not prejudiced by a decision on the claims at this time. Increased Rating Claims In accordance with 38 C.F.R. §§ 4.1, 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 Veteran's thoracic spine, hypertension, deviated nasal septum and abdominal aortic aneurysm. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2009). The Board attempts to determine the extent to which a service-connected disability adversely affects the appellant's ability to function under the ordinary conditions of daily life, and an assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thoracic Spine In an April 1981 decision, the Board granted service connection for compression deformities of the 11th and 12th thoracic vertebrae. An October 1981 rating decision effectuated the Board's decision and assigned a noncompensable evaluation, effective March 1, 1979, under Diagnostic Code 5291. In a January 1983 rating decision, the rating was increased to 10 percent, effective March 1, 1979. The Veteran's claim for an increased rating for his thoracic spine disability was received in February 2003. In a November 2004 rating decision, a 20 percent evaluation was assigned for the thoracic spine disability, effective February 28, 2003, the date of receipt of the claim for an increased rating. The thoracic spine disability was evaluated under Diagnostic Code 5235. It is observed that the schedular criteria for evaluating disabilities of the spine have undergone a revision during the pendency of this appeal. The amendment affected general diseases of the spine and became effective September 26, 2003. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3- 00. At all times throughout the appeal period, Diagnostic Code 5003 provides that degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion of the affected joint. Prior to September 26, 2003, Diagnostic Code 5285 provides that residuals of a fracture of the vertebra, without cord involvement, were rated as 60 percent disabling where there was abnormal mobility requiring a neck brace (jury mast). With spinal cord involvement, being bedridden, or requiring long leg braces, a 100 percent rating was warranted. In other cases, a disability due to residuals of a vertebral fracture was rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable vertebral body deformity. As in effect prior to September 26, 2003, Diagnostic Code 5291, which evaluates the severity of limitation of dorsal spine motion, provides for a 0 percent evaluation for slight limitation of motion, a 10 percent evaluation for moderate limitation of motion, and a 10 percent evaluation for severe limitation of motion. Under Diagnostic Code 5295, lumbosacral strain is rated as noncompensable with slight subjective symptoms only. A 10 percent rating is warranted with characteristic pain on motion. A 20 percent rating requires muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in the standing position. A 40 percent rating requires that the lumbosacral strain be severe, with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral spine motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under Diagnostic Code 5293, as in effect prior to September 26, 2003, a 10 percent disability rating is warranted for disability with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. The Board must also consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the service-connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all other disabilities, results in a higher combined disability rating. The diagnostic criteria pertinent to spinal disabilities in general were revised effective September 26, 2003. The General Rating Formula provides that 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, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2010). The Board notes that as instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code. In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service- connected disabilities are combined under 38 C.F.R. § 4.25. Finally, when evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2005); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran underwent a VA (QTC) examination of the spine in August 2003. He complained of progressive thoracic and lower back pain. He stated that at times, he is unable to sit or lay still and that he has to constantly change positions. He felt that his symptoms prevented him for doing just about anything. He stated that the pain did not seem to radiate to any parts of his body. He indicated that he has been recommended to be on bedrest for several days by his physician. He was functionally impaired at times when he is unable to do simple daily activities like tying his shoes or bending at the waist to pick up items from the floor. He was not currently working but when he worked, he lost approximately 25 days from work. He was able to brush his teeth and cook. He could walk for approximately an hour. He could shower. He was not able to climb stairs. He could shop. He could vacuum. He could dress himself. He was not able to do any gardening or push a lawnmower. He could take out the trash. He could drive a car for only two hours at a time. Physical examination revealed that his posture and gait were normal. Examination of the thoracic spine showed tenderness at the levels of T10 through T12 including L1 and L2. There were no signs of radiculopathy. There was no fatigue, weakness, lack of endurance or incoordination. There was an obvious kyphotic deformity of the lower thoracic spine, however, there did not seem to be ankylosis of the spine. On examination of the lumbar spine, there was radiating pain. There were no specific muscle spasms. There was tenderness to palpation at all levels from L1 through S1 intervertebrally. Straight leg raising test on the right was positive at 45 degrees and on the left was negative. The Veteran was able to flex to approximately 85 degrees, experiencing pain on flexion at 80 degrees. Extension was to 35 degrees. Right lateral and left lateral flexion were to 40 degrees. Right rotation and left rotation were to 35 degrees. There was pain limiting the range of motion of the lumbar spine. There was no fatigue, weakness, lack of endurance or incoordination. There was no ankylosis of the spine. Neurological examination revealed that motor and sensory functions were normal. Deep tendon reflexes of the knees and ankles were 2+. X-rays of the lumbar spine revealed lumbar spondylosis with an old mild compression fracture, L2. X-rays of the thoracic spine revealed a probable old mild compression fracture of T12. The diagnoses were lumbar spondylosis, compression fracture 12, T12 and degenerative disc disease of the lumbar spine. On VA (QTC) examination in October 2003, the Veteran complained of back pain that was exacerbated by bending, twisting, heavy lifting and sitting/standing for long periods of time. There was no associated lower extremity paresthesias, bowel/bladder dysfunction, decreased muscle strength or gait disturbance. The Veteran reported that the symptoms described occurred constantly. The pain did not travel to other parts of the body and did not cause incapacitation. Functional impairment consisted of restriction in range of motion and ambulation/lifting limitations. The condition resulted in 25 days of lost time from work. The Veteran indicated that he was able to brush his teeth, take a shower, vacuum, drive a car, cook, dress himself, take out the trash, walk and shop. He was unable to climb stairs, perform gardening activities and push a lawn mower. His usual occupation was aircraft mechanic but he was not currently employed. Physical examination revealed that the Veteran's posture was abnormal and there was increased thoracic kyphosis. His gait was within normal limits. Examination of the thoracic spine revealed complaints of radiating pain on movement. Muscle spasm was present. There was tenderness noted on exam. There was negative straight leg raising on the right and the left. Flexion was to 85 degrees with pain starting at 80 degrees. Extension was to 20 degrees with pain starting at 15 degrees. Right and left lateral flexions were to 35 degrees, respectively, and with pain starting at 30 degrees for each motion. Right and left rotations were to 30 degrees, respectively, with pain starting at 20 degrees for each motion. Range of motion of the spine was additionally limited by pain and pain had the major functional impact. Range of motion was not additionally limited by fatigue, weakness, lack of endurance and incoordination. There was no ankylosis of the spine. There were signs of intervertebral disc syndrome of the thoracic spine. The intervertebral disc syndrome did not cause any bowel dysfunction, bladder dysfunction or erectile dysfunction. Peripheral nerve examination was within normal limits. Motor and sensory functions were within normal limits. The right and left lower extremity reflexes revealed that knee jerk was 2+ and ankle jerk was 2+. X-rays of the thoracic spine showed residual of vertebral compression fracture of osteoarthritic etiology. The diagnosis was compression deformity, 11th and 12th thoracic vertebra. The examiner noted that the condition had progressed to symptomatic worsening. On VA (QTC) examination in October 2008, the Veteran reported pain and stiffness of the spine. He denied any numbness, loss of bladder control or loss of bowel control. He described the pain as constant, localized, crushing, aching and sharp. He indicated that the pain level was a 10 and can be elicited by physical activity and relieved spontaneously or by rest. He stated that he was not receiving any treatment for his condition and that the condition has not resulted in any incapacitation. He denied any functional impairment from his condition. On physical examination, the Veteran's spine was within normal limits. His gait was slow and deliberate, but he did not require an assistive device for ambulation. Inspection of the spine revealed normal head position and symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The diagnosis was compression deformity of the 11th and 12th thoracic vertebrae with osteoarthritic changes, currently stable. The subjective factors were painful mid back and the objective factors were slight thoracic tenderness. In an October 2008 addendum, the examiner reported that there was no radiation of pain, muscle spasm or tenderness on movement of the spine. Straight leg raising tests on the right and left were negative. There was no ankylosis of the lumbar spine. Range of motion testing of the thoracolumbar spine revealed that flexion was to 75 degrees with pain occurring at 60 degrees. Extension was to 20 degrees with pain occurring at 15 degrees. Right lateral flexion was to 20 degrees with pain occurring at 10 degrees. Left lateral flexion was to 15 degrees with pain occurring at 5 degrees. Rotation to the right was to 20 degrees with pain occurring at 10 degrees. Rotation to the left was to 15 degrees with pain occurring at 5 degrees. The thoracolumbar joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was no indication of peripheral nerve involvement. The pre-amended Diagnostic Code 5291 provided a 10 percent rating for moderate or severe limitation of motion of the dorsal spine. The Veteran does have some limitation of motion of the thoracolumbar spine. The August 2003 VA examination report shows that extension was to 35 degrees and that flexion was to 85 degrees. Right and left lateral flexion was to 40 degrees, respectively. Right and left rotation was to 35 degrees, respectively. Essentially, though the examination report documents complaints of back pain and some limited motion of the lumbar spine, the Veteran retained moderate range of motion on examination, and there was no appreciable neurological pathology, muscle atrophy, incoordination, or loss of strength. However, even with the addition of an extra 10 percent for vertebral deformity, the rating is still only 20 percent. Thus, even considering additional functional limitation per DeLuca, the disability picture does not most nearly approximate the next- higher 40 percent evaluation for any portion of the rating period on appeal. Under the pre-amended Diagnostic Code 5295, a 40 percent rating can be achieved on a showing of 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 with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Although the Veteran does have limitation of motion of the thoracolumbar spine, Goldthwaite's sign, marked limitation of forward bending in a standing position, listing of the spine or loss of lateral motion has not been found at any time. Overall, then, the disability picture does not most nearly approximate the next- higher 40 percent evaluation for any portion of the rating period on appeal. Turning now to Diagnostic Code 5293, in effect prior to September 26, 2003, the orthopedic manifestations of the thoracic spine disability, as discussed above, warrant a 20 percent rating. Although the Veteran reported at the August 2003 VA examination that he was recommended to be on bedrest for several days by his physician, the objective evidence contradicts this. Moreover, the Veteran's neurologic findings were within normal limits, precluding entitlement to any compensable evaluation. Thus, no separate ratings for the orthopedic and neurologic manifestations of the thoracic spine back disability are warranted here, and the single 20 percent evaluation already in effect should remain intact. Regarding the revisions to the rating schedule, effective September 26, 2003, the VA examination reports consistently report no evidence of ankylosis and flexion of the thoracolumbar spine is greater than 30 degrees. As such, the criteria for the next higher 40 percent rating under the general rating formula for diseases and injuries of the spine have not been met. Moreover, although the Veteran reported loss of function, the objective evidence does not demonstrate additional limitation of function from which to conclude that the Veteran's disability picture is analogous to the 40 percent rating per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The rating formula specifies that any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2010). The VA examinations of record found no objective evidence of neurologic abnormalities. There was no indication that the Veteran had bladder or bowel problems. Again, no incapacitating episodes have been shown, precluding a higher evaluation on that basis. For all of the above reasons, the claim of entitlement to an evaluation in excess of 20 percent for compression deformity of the 11th and 12th thoracic vertebrae must be denied. Hypertension In October 1979, entitlement to service connection was granted for hypertension, and a noncompensable rating was assigned, effective March 1, 1979, under Diagnostic Code 7101. The Veteran's current claim for an increased evaluation for his service-connected hypertension was received in August 2004. In a November 2004 rating decision, the RO assigned a 10 percent evaluation for the service-connected disorder, effective February 6, 1996, the date the Veteran was hospitalized at the Hampton VA Medical Center and was subsequently diagnosed with a brainstem transient ischemic attack. A 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. When the requirements for a compensable rating of a diagnostic code are not shown, a noncompensable rating is assigned. 38 C.F.R. § 4.31. A VA report of hospitalization in February 1996 revealed a blood pressure reading of 158/96 and that the Veteran was started on clonidine for treatment of hypertension. A VA clinical record dated in November 1996 discloses a blood pressure reading of 134/86. VA clinical records dated in May and November 1997 disclose blood pressure readings of 95/73, 116/80, 131/93 and 130/80. VA clinical records dated in May and November 1998 disclose blood pressure readings of 146/83, 130/80, 142/94, and 126/90. VA clinical records dated in November 1999 disclose blood pressure readings of 145/96 and 120/80. VA clinical records dated in March, May, August, October and November 2000 disclose blood pressure readings of 103/69, 104/70, 123/91, 120/90, 144/85, 143/85 and 142/87. A VA clinical record dated in January 2001 discloses a blood pressure reading of 146/94. On VA (QTC) examination in August 2003, blood pressure readings of 160/74, 158/70 and 160/72 were recorded. VA clinical records dated in August and December 2003 disclose blood pressure readings of 160/74, 158/70, 160/72, 152/108 and 150/94. VA clinical records dated in February, March, April, August and October 2004 disclose blood pressure readings of 128/86, 116/77, 135/77, 131/80, 126/74, 122/70 and 128/76. On VA (QTC) examination in October 2004, the Veteran reported that he has received different medications over the years for management of his hypertension and that currently he was on HCTZ and clonidine. He denied any coronary artery disease or exertional chest pain. He has not had congestive heart failure. He denied any renal insufficiency and stated that his blood pressure is well controlled on his current medication with no significant side effects. Blood pressure readings of 126/74, 122/70 and 128/76 were recorded. On VA (QTC) examination in October 2007, blood pressure readings of 130/68, 130/68, and 130/68 were recorded. On VA (QTC) examination in October 2008, the examiner noted that the Veteran's hypertension has existed since 1977 with a history of strokes in 1996. He was currently taking medication for treatment of his hypertension. Blood pressure readings of 122/70, 118/66 and 122/72 were recorded. The examiner concluded that the Veteran's hypertension was stable on medication. There was no finding of hypertensive heart disease or neurologic defect. The Veteran reported fatigue but he also reported that he walked nearly 8 miles the day before the examination. The Board that throughout the rating period on appeal, the Veteran is not entitled to an evaluation in excess of 10 percent. Blood pressure readings obtained during VA clinical reports from 1996 to 2007 and on VA examinations in August 2003, October 2004, October 2007 and October 2008 do not show systolic readings that were predominately 200 or greater, or diastolic readings that were predominately 110 or greater. As such, the readings recorded do not meet the criteria for a rating in excess of 10 percent. The claim of entitlement to an evaluation in excess of 10 percent for hypertension with transient ischemic attack must be denied. Left Nasal Airway Obstruction In an April 1981 decision, the Board granted service connection for left nasal airway obstruction. An October 1981 rating decision effectuated the Board's decision and assigned a 10 percent evaluation, effective March 1, 1979, under Diagnostic Code 6502. The Veteran's claim for an increased rating for his left nasal airway obstruction was received in August 2004. The Veteran's left nasal airway obstruction has been rated by the RO under the provisions of Diagnostic Code 6502 for traumatic deviation of the nasal septum. 38 C.F.R. § 4.97, Diagnostic Code 6502. Under this regulatory provision, a traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent disability rating. On VA (QTC) examination in October 2004, the Veteran reported that he was not able to breathe through the left side of his nose. He stated that his breathing had decreased by 50-60% through the right side of the nose and that he essentially has to breathe through his mouth most of the time. He indicated that whenever it is cold, breathing through the nose on the right side makes it sore. He stated that it causes him no functional impairment or disability. It was irritating to him, but there was no real disability. Physical examination revealed no airflow in the left nostril and about 50% airflow through the right. There was about a 4 mm piece of subcutaneous cartilage protruding in the lower medial septum. There was no evidence of polyps or infection. There was no postnasal drainage. His pharynx was normal. There was no sinus tenderness. The diagnoses were deviated nasal septum and left nasal airway obstruction. On VA (QTC) examination in October 2008, the denied having any sinus problems. He reported interference with breathing through the nose. He did not have any purulent discharge, hoarseness of the voice, pain or crusting. He has never received any treatment for this disorder. He reported that he cannot smell leaking fluids such as a house gas leak. Examination of the nose revealed nasal obstruction and the percentage of obstruction in the right nostril was about 25% and in the left it was about 60%. There was a deviated septum on the left. There was no loss of part of the nose, loss of part of the ala, a scar, obvious disfigurement or nasal polyps. Rhinitis was not noted. Nasal x- ray was within normal limits. The examiner noted that the Veteran's condition was currently stable but symptomatic. The Veteran's subjective factors consisted of being unable to breathe out of the left nostril. The objective factors were: 60% left nostril obstruction and 25% right nostril obstructive. There was no finding of bacterial rhinitis. With regard to the question of entitlement to a higher evaluation for the service-connected left nasal airway obstruction, the assigned 10 percent rating is the maximum disability rating permitted under Diagnostic Code 6502. As this is the maximum evaluation allowed under this diagnostic code, an increased schedular evaluation cannot be assigned. Additionally, the Board has reviewed the remaining diagnostic codes relating to disabilities or diseases of the respiratory system, but finds that they are inapplicable in this case. See 38 C.F.R. § 4.97 (2010). In light of the Veteran's service- connected disability, the Board finds that the Veteran is most appropriately rated under Diagnostic Code 6502. The Board acknowledges that the Veteran has breathing problems which affect his everyday life. The medical evidence of record, however, simply does not reflect that the Veteran is entitled to an increased rating for this disability under any available diagnostic codes. While the Board considered his lay complaints, the Board ultimately places more weight on the competent findings of the health care specialists of record. As such, an increased rating for the Veteran's service-connected left nasal airway obstruction is not warranted. Abdominal Aortic Aneurysm Aortic aneurysms are evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7110. This code provides that a 60 percent rating is warranted for an aneurysm that precludes exertion. The maximum schedular rating of 100 percent is warranted for an aneurysm that is 5 centimeters (cms.) or larger in diameter or is symptomatic; or for an indefinite period from the date of hospital admission for surgical correction, including any type of graft insertion. Note (3) to this code provides that a 100 percent rating shall be assigned as of the date of admission for surgical correction and that the appropriate disability rating shall be determined by mandatory VA examination six months following discharge from the hospital. Any change in evaluation based upon that or any subsequent examination is subject to the provisions of 38 C.F.R. § 3.105(e) (2010). In November 2004, entitlement to service connection was granted for abdominal aortic aneurysm, and a 60 percent rating was assigned, effective August 26, 2003, under Diagnostic Code 7110. Service connection was granted on a secondary basis. Specifically, on VA examination of the spine in August 2003, x- rays revealed the presence of an abdominal aortic aneurysm. In October 2004, a VA examiner concluded that the abdominal aortic aneurysm was due to the Veteran's service-connected hypertensive vascular disease. The Veteran appealed for a higher initial evaluation A December 2003 VA x-ray revealed that the abdominal aneurysm was nearly 5 cm. in length and 4 cm. in diameter. In an April 2004 VA clinical record, it was noted that the abdominal aortic aneurysm was asymptomatic and that a repeat CT scan was to be conducted in July 2004. In an August 2004 VA surgical note, it was stated that the abdominal aortic aneurysm had remained unchanged at approximately 4 cm. and that the Veteran should yearly follow-ups. A private CT scan conducted in June 2006 showed that the abdominal aortic aneurysm was 5.1 cm in diameter. In a September 2007 rating decision, a 100 percent evaluation was assigned for the abdominal aortic aneurysm, effective June 9, 2006, the date the CT scan showed that the aortic aneurysm was 5.1 cm in diameter. Furthermore, private medical reports showed that in August 2006, the Veteran underwent surgical resection and grafting for repair of the abdominal aortic aneurysm. A mandatory VA (QTC) examination was conducted in October 2007. The Veteran reported no history of angioneurotic edema or erythromelalgia. He denied a history of Raynaud's syndrome. He was not receiving any treatment for his condition. The condition did not prevent him from exertion or from performing any exercise. He reported no limitation due to this condition. The diagnosis was status post resection and grafting associated with residual scar and hypertension and transient ischemic attack. The Veteran underwent further VA (QTC) examination in October 2008, where he reported that after his aortic abdominal aneurysm surgery, he has performed reasonably well. He has no leg pain after walking distances. There was no calf pain at rest and he did not feel persistent coldness of the extremities. He did not experience any functional impairment from the condition. The diagnosis was abdominal aortic aneurysm, status-post resection and grafting. The examiner stated that currently, the disposition is stable and the Veteran's condition is asymptomatic. There were no subjective factors associated with this condition. The objective factors included a well-healed 53 cm. scar, non-tender, on the abdomen. There were no findings of hypertensive heart disease or neurological deficit. As noted above, in a November 2008 rating decision, the RO proposed to reduce the Veteran's disability evaluation for his service-connected abdominal aortic aneurysm based on VA examination findings in October 2008. The November 2008 rating decision also reflects that service connection for scar, status post abdominal aortic aneurysm, was granted and assigned a noncompensable evaluation. In a February 2009 rating decision, the RO reduced the rating for abdominal aortic aneurysm, status- post resection and grafting, from 100 percent to noncompensable, effective May 1, 2009. The Board notes that prior to June 9, 2006, the medical evidence revealed that the abdominal aortic aneurysm was not 5 cm. or more in diameter or symptomatic. Rather, the evidence prior to June 2006 revealed that on CT scan in December 2003, the abdominal aortic aneurysm was 4 cm. in diameter and in an April 2004 VA clinical record it was noted to be asymptomatic. Furthermore, the evidence also shows that a compensable evaluation is not warranted for the abdominal aortic aneurysm from May 1, 2009. The October 2007 VA examination report reveals that following aortic abdominal aneurysm surgery in August 2006, the Veteran indicated that he was not prevented from exertion or from performing any exercise. Moreover, the October 2008 VA examiner noted that the Veteran's condition was stable and asymptomatic. Thus, an initial evaluation in excess of 60 percent for abdominal aortic aneurysm prior to June 9, 2006 and a compensable evaluation from May 1, 2009 is not warranted. Extraschedular Consideration The Board considered the provisions of 38 C.F.R. § 3.321(b)(1). The record does not reflect that the thoracic spine disorder, hypertension, left nasal airway obstruction, or abdominal aortic aneurysm have caused a marked interference with employment beyond that contemplated by the schedule for rating disabilities, that it has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disabilities. In the absence of such factors, the requirements for referral of the case for evaluation for an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Earlier Effective Date Claims The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. For an original claim received within 1 year after separation from service, the effective date of an evaluation and award of compensation will be the day following separation from active duty service. 38 C.F.R. § 3.400(b)(2). As an exception, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year prior to the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2) (2010); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. Id. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). In cases where the schedular rating is less than 100 percent, a total disability rating may be assigned when the individual is unable to secure or follow a substantially gainful occupation as the result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable 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(a). Disabilities resulting from common etiology or a single accident will be considered as one disability. Id. In a November 2004 rating decision, the Veteran was granted a TIDU with an effective date of August 26, 2003, as this was the date that the RO found he met the schedular criteria under 38 C.F.R. § 4.16. In that same decision, the RO also granted service connection for abdominal aortic aneurysm and assigned a 60 percent evaluation, effective from August 26, 2003 and assigned a 20 percent evaluation for the thoracic spine disorder, effective from February 28, 2003. The Veteran had previously been awarded a 10 percent rating for tinnitus; a 10 percent rating for left nasal airway obstruction; a 10 percent rating for left inguinal hernia; a 10 percent rating for hypertension; a noncompensable rating for bilateral hearing loss; a noncompensable rating for otitis externa; a noncompensable rating for residuals of a laceration of the right eyebrow; and a noncompensable rating for neurodermatitis of the back and feet, bringing his total combined disability rating to 80 percent, and qualifying him for TDIU under 38 C.F.R. § 4.16(a). Prior to that date, the Veteran did not have a combined rating of 70 percent or more. Also, the evidence does not establish that the Veteran was rendered unemployable due solely to his service- connected disabilities prior to that date, indicating a total rating was not warranted under 38 C.F.R. § 4.16(b). Thus, because the Veteran did not become eligible for a TDIU prior to August 26, 2003, an earlier effective date cannot be assigned in the present case, as this was the earliest date entitlement arose. DEA Benefits For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2010). Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. After reviewing the record, the Board finds that the Veteran did not meet the criteria for a TDIU prior to August 26, 2003; therefore, the assignment of an effective date prior to August 26, 2003, is not warranted. Since eligibility for DEA under 38 U.S.C. Chapter 35 is predicated on a finding of permanent total disability in this case, the effective date of such eligibility cannot precede August 26, 2003. The Board finds that this matter is one in which the law is dispositive and that this issue must be denied on that basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An evaluation in excess of 60 percent for compression deformity of the 11th and 12th thoracic vertebrae is denied. An evaluation in excess of 10 percent for hypertension with transient ischemic attack is denied. An evaluation in excess of 10 percent for left nasal airway obstruction is denied. An initial evaluation in excess of 60 percent for abdominal aortic aneurysm prior to June 9, 2006 and a compensable evaluation from May 1, 2009, is denied. An effective date earlier than August 26, 2003, for the grant of a TDIU is denied. An effective date earlier than August 26, 2003, for the grant of DEA benefits pursuant to 38 U.S.C. Chapter 35 is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs