Citation Nr: 0715959 Decision Date: 05/30/07 Archive Date: 06/11/07 DOCKET NO. 04-42 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 20 percent for service- connected status post mechanical lumbosacral sprain prior to January 9, 2004, and in excess of 20 percent from January 9, 2004, forward. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from August 1996 to October 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The veteran submitted a notice of disagreement in January 2004. A statement of the case was issued in October 2004, and a substantive appeal was received in November 2004. By letter dated in October 2005, the veteran was informed of a scheduled November 2005 videoconference hearing before a member of the Board. He failed to appear for that hearing. In June 2006, the Board received evidence not previously considered by the RO. This evidence consists of a medical opinion rendered by Craig N. Bash, M.D. Dr. Bash expresses an opinion that the veteran suffers neurological symptoms from ruptured discs at the L4-5 and L5-S1 level, which this physician attributes to the veteran's service. In March 2005, the RO denied the veteran's claim for service connection for degenerative disc disease with herniation L4 to S1. The record is absent for a notice of disagreement to the March 2005 RO decision and the issue of service connection for disc disease from L4 to S1 is not before the Board. Dr. Bash's medical opinion and supporting data does not address the rating criteria for the veteran's service connected disability of the lower back but rather address a disorder for which the veteran is not service connected. As such, this evidence is not pertinent to the veteran's claim for an increased rating for service-connected status post mechanical lumbosacral sprain, the only issue presently before the Board. Therefore, the Board will adjudicate the veteran's claim for an increased rating for his service- connected disability irrespective of this evidence. See 38 C.F.R. § 20.1304(c) (2006). A petition to reopen a claim for service connection for degenerative disc disease of the lumbar spine and a claim for entitlement to a total disability rating for compensation purposes based upon individual unemployability is referred to the RO for appropriate action. FINDINGS OF FACT 1. Prior to January 9, 2004, no competent evidence of record demonstrates that the veteran's service-connected status post mechanical lumbosacral sprain resulted in muscle spasm on extreme forward bending; loss of lateral spine motion, unilateral, in standing position; greater than slight limitation of motion of the lumbar spine; forward flexion of the thoracolumbar spine of 60 degrees or less; combined range of motion of the thoracolumbar spine of 120 degrees or less; 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. 2. From January 2004 forward, the veteran's service- connected status post mechanical lumbosacral sprain results in forward flexion of the thoracolumbar spine limited to 40 degrees by pain, but does not result in severe limitation of motion of the lumbar spine; marked limitation of forward bending in the standing position; loss of lateral motion with osteo-arthritic changes; listing of the whole spine to the opposite side; positive Goldthwait's sign; abnormal mobility on forced motions; or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected status post mechanical lumbosacral sprain, prior to January 9, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45 (2006), 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002), Diagnostic Code 5237 (2006). 2. The criteria for a rating in excess of 20 percent for service-connected status post mechanical lumbosacral sprain, from January 9, 2004, forward, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45 (2006), 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002), Diagnostic Code 5237 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 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). In this case, the veteran was not provided with notice as to assignment of effective dates. However, the veteran cannot be prejudiced by this lack of notice. As the Board is denying his claim for an increased rating, any question as to assignment of an effective date is moot. VA satisfied the duty to notify by means of a letter dated in July 2002. This letter was provided to the veteran prior to the initial adjudication by the RO in March 2003. The veteran was asked to "submit records describing how serious your disability is at this time." Such would include any evidence in his possession. He was told of his and VA's respective duties in obtaining evidence. The content and timing of this notice substantially complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). While the July 2002 letter was not the model of VCAA notice for an increased rating claim, the Board finds that the veteran has demonstrated that he has actual knowledge of the requirements of a successful claim for an increased rating. In his July 2002 claim he specifically stated that he was seeking a higher rating due to the problems "that are increasing of my lower back." In a letter dated in April 2004, the veteran argued that his lower back pains had escalated and that he had "been complaining of the increasing severity of my lower back pains for the past year." In the June 2004 notice of disagreement, his representative argued that he should be evaluated at 40 percent or 60 percent for his lower back disability and cited to a specific diagnostic code. In an April 2004 letter, the veteran stated that he realized that statements made by a VA medical examiner as to the level of the veteran's pain were "critical" for VA in determining his rating. He also supplied a summary of events specifying that he had complained to his private physician that his lower back pains were becoming more severe. In a statement submitted to VA in October 2005, the veteran's representative cited statutes, case law, and regulations in argument for a higher rating. Given the above, it is clear that the veteran has actual knowledge of the requirements for a successful claim for an increased rating, that is, that his disability has increased in severity. Therefore, any deficiency in notice will not result in prejudice to the veteran and the Board will proceed to adjudicate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (where a veteran has demonstrated actual knowledge of the requirements for establishing an earlier effective date, defects in VCAA notice are not prejudicial to the veteran). Service medical records are associated with the claims file, as are records and reports from VA and non-VA health treatment providers. All records for which the veteran sought VA assistance in obtaining, have been obtained. An appropriate VA examination was afforded the veteran in March 2004. Therefore, the Board finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2006). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2006). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, 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. Id.; 38 C.F.R. §§ 4.1, 4.2 (2006). The Board notes that during the pendency of the veteran's appeal, changes were made to the Schedule for Rating Disabilities for disabilities of the spine effective September 26, 2003. When a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. Statutes and regulations are presumed not to apply in any manner that would produce genuinely retroactive effects, unless the statute or regulation itself provides for such retroactivity. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also Landgraf v. USI Film Products, 511 U.S. 244 (1994); Regions Hospital v. Shalala, 522 U.S. 448 (1998); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Since service connection has been granted, the veteran's status post mechanical lumbosacral sprain has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5295 and 5237, both for lumbosacral strain. Only these Diagnostic Codes and Diagnostic Code 5295, for limitation of motion of the lumbar spine, are appropriate for rating the veteran's service- connected disability of the lumbar spine. Consideration of criteria for rating intervertebral disc syndrome would be inappropriate because the veteran is not service connected for this disability. In this case, the April 2004 rating decision contains the criteria for evaluating lumbosacral strain effective prior to September 2003 and the criteria found in the September 2003 revision. The October 2004 statement of the case contains the full text of the criteria as revised in September 2003. Thus, the RO has considered both the unrevised and revised criteria and the veteran has been informed of the criteria considered. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5295 provided for a 40 percent rating for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motions. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position warranted a 20 percent rating. Id. Lumbosacral strain with characteristic pain on motion warranted a 10 percent rating. Id. Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5292 provided for a 40 percent rating for severe limitation of motion of the lumbar spine, a 20 percent rating for moderate limitation of motion of the lumbar spine, and a 10 percent rating for and slight limitation of motion of the lumbar spine. Effective since September 26, 2003, lumbosacral strain is evaluated under Diagnostic Code 5237 according to the General Rating Formula for Diseases and Injuries of the Spine, 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. In pertinent part, a100 percent rating is warranted for unfavorable ankylosis of the entire spine, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Id. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 or more of the height warrants a 10 percent rating. Id. Several notes under the General Rating Formula for Diseases and Injuries of the Spine provide guidance in rating disabilities of the spine. Note (1) directs VA to evaluate associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Id. In pertinent part, Note (2) provides that for VA compensation purposes, 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. Id. 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. Id. The normal combined range of motion 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. Id. The normal range of motion of the spine is also depicted in 38 C.F.R. § 4.71a Plate V. Note (3) under General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a explains that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Id. Note (4) directs VA to round each range of motion measurement to the nearest five degrees. Id. Note (5) explains that 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. Id. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. VA outpatient treatment records from February 2003 contain the veteran's complaints of lower back pain and mild tenderness to palpation at the sacroiliac joint but do not contain evidence sufficient for rating the veteran's disability on appeal. The veteran failed to report for VA examinations scheduled in August 2002 and February 2003. The veteran underwent VA examination of his spine in March 2004. Range of motion of the thoracolumbar spine was measured at 65 degrees of forward flexion with reported pain at 40 degrees, and he reached 75 degrees on repeat flexion. Extension was measured at 40 degrees with pain reported at 20 and 35 degrees with repeated extension. Lateral extension was 30 degrees with reported pain at 15 and 25 degrees with repeated extension, bilaterally. Left lateral rotation was measured at 50 degrees with reported pain at 40 degrees and 50 degrees with repeated left lateral rotation. Right lateral rotation was measured at 50 degrees with reported pain at 45 degrees and 50 degrees with repeated right lateral rotation. The examiner indicated that a 5 percent functional limitation occurred during flareup and there was no additional functional loss after repeated activity. The veteran reported symptoms of low grade stabbing pain across the lower back with sharp radiation of pain to his left buttock and left posterior thigh to his knee but no numbness, weakness, or bladder of bowel complaints. There were no objective neurological findings. X-rays of the lumbar spine revealed a minimal loss of height of the body of L1, but were otherwise normal. Examination found the veteran's spine to be midline from the thoracic to the lumbosacral areas. There was mild point tenderness to palpation with left greater than right of the paralumbar spinal muscles. There was no muscle spasm noted, or heat, edema or effusion. The diagnosis was status post lumbar strain with continuing back pain. VA outpatient records from June 2004 reported observable palpable muscle spasms of the paraspinalis muscle group of the lumbar area. March 2004 contain no additional evidence suitable for rating the disability on appeal. Private medical records associated with the claims file address only disorders not before the Board. Because there is no relevant evidence for rating the veteran's disability prior to March 2004, a rating higher than the 10 percent already assigned prior to January 9, 2004 is not warranted. Evidence since January 2004 shows the veteran's spine to be midline from the thoracic to the lumbosacral area, precluding a finding of listing of the whole spine to the opposite side. The record is absent for a finding of positive Goldthwaite's sign, arthritic changes of the lumbar spine, narrowing or irregularity of the joint space, or abnormal mobility on forced motions. The most limited flexion of the thoracolumbar spine is 38 degrees due to pain, including the effects of flareup. This limitation of motion is not "marked" limitation of forward bending, does not meet the requirement of limitation to 30 degrees or less for a 40 percent rating under the revised criteria, and, by analogy, cannot be considered severe limitation of motion of the lumbar spine or marked limitation of forward bending in the standing position. The Board notes that the provisions of 38 C.F.R. § 4.40 and §4.45, as required by DeLuca, have been considered as evidenced by discussion of pain on motion, the functional limitation during flareup, and the effect of repeated motion. As the record contains no objective evidence of neurological disability attributed to the veteran's lumbosacral sprain, a separate rating under a diagnostic code for neurological disability is not warranted. Because medical evidence of record fails to demonstrate that, from January 9, 2004 forward, the veteran's status post mechanical lumbosacral sprain does not meet applicable criteria for a rating higher than 20 percent, a higher rating is not warranted. Extraschedular consideration To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2006). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). No evidence of record shows that the veteran's service- connected status post mechanical lumbosacral sprain has resulted in hospitalization. Nor does the record show that this disability has resulted in marked, or for that matter any, interference with employment. February 2003 records from Linda O'Leary, M.D., of the Kaiser Foundation, indicate that the veteran injured his right knee while working as a tow truck driver that same month. December 2003 records from James C. Thomas, Jr., M.D., report the veteran's post service work related right knee injury in February 2003, that he stopped working in July 2003, and that he would be temporarily and totally disabled from July 2003 until January 2004. There is no mention of a back disability. All other references of record attribute the veteran's alleged inability to work to disorders for which he is not service connected, whether it be depression or degenerative disc disease. The record is absent for objective evidence that the veteran has ever lost or been denied employment due to his service-connected disability. The Board thus finds that evidence of record does not establish that the veteran's service-connected status post mechanical lumbosacral sprain has resulted in marked interference with employment or hospitalization. In the absence of evidence presenting exceptional circumstances, the claim is not referred for consideration of an extraschedular rating; the veteran's disability is appropriately rated under the schedular criteria. Conclusion For the reasons stated above, the veteran's claim for a higher rating for his service-connected status post mechanical lumbosacral sprain must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2006). ORDER Entitlement to a rating in excess of 10 percent for service connected status post mechanical lumbosacral sprain prior to January 9, 2004, and in excess of 20 percent from January 9, 2004, forward, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs