Citation Nr: 0738282 Decision Date: 12/06/07 Archive Date: 12/13/07 DOCKET NO. 04-34 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a disability rating higher than 10 percent for degenerative disc disease, lumbosacral spine, previously rated as low back strain with degenerative changes, lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran served on active duty from April 1972 to April 1998. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los, Angeles, California, which denied an increased rating for the veteran's degenerative disc disease, lumbosacral spine, currently rated at 10 percent. FINDING OF FACT The veteran's disability is not manifested by incapacitating episodes requiring bed rest prescribed by a physician, forward flexion is not limited to 60 degrees or combined range of motion limited to 120 degrees, nor does the veteran experience muscle spasms with extreme forward bending or otherwise. CONCLUSION OF LAW The criteria for an increased rating for degenerative disc disease, lumbosacral spine, have not been met. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a. Diagnostic Codes 5293 and 5295 (effective prior to September 26, 2003); Diagnostic Code 5243 (effective September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION The record shows that the veteran injured his lumbar spine while on active duty. In a December 1998 rating decision, the RO granted service connection for low back strain with degenerative changes, lumbar spine. The RO assigned a disability rating of 10 percent. In January 2003, the veteran filed a claim seeking a disability rating higher than 10 percent for his low back strain with degenerative changes. In June 2003, the RO denied the veteran's claim and continued the 10 percent disability rating. The RO also recharacterized the disability as degenerative disc disease, lumbosacral spine. Therefore, the issue on appeal is entitlement to a disability rating higher than 10 percent for degenerative disc disease, lumbosacral spine. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board notes that the criteria for rating disabilities of the spine were amended once since the veteran filed his claim. The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased rating for the veteran's low back disability is warranted. VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g). At the time the veteran filed his claim, his low back strain with degenerative changes, lumbar spine, was evaluated under Diagnostic Code (DC) 5295, which provides a 10 percent rating for lumbosacral strain with characteristic pain on motion; a 20 percent rating for lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion; and a 40 percent rating for severe symptoms with 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 foregoing with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (effective prior to September 26, 2003). Upon recharacterizing the veteran's disability as degenerative disc disease, lumbosacral spine, the RO rated the disability under DC 5293 (effective prior to September 26, 2003), intervertebral disc syndrome, and continued a 10 percent rating. Intervertebral disc syndrome 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 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5293 (September 23, 2002). Under DC 5293, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. Id. Effective September 26, 2003, that portion of the rating schedule pursuant to which diseases and injuries of the spine are evaluated was revised. DC 5293 for rating intervertebral disc syndrome was changed to DC 5243, which provides that ratings are now based on either the general rating formula for diseases and injuries of the spine (effective September 26, 2003), or on the basis of incapacitating episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 20 percent rating where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2007). Relevant evidence includes a May 2003 VA examination report. During the exam, the veteran reported that he has had a "sensitive back" with periodic acute flare-ups of low back pain ever since sustaining his service-connected injury. He stated that the pain generally does not radiate to the extremities; however, he noticed discomfort in his right leg on one or two occasions. He indicated that prior medical providers attributed the leg discomfort to a component of his degenerative disc disease in the lumbosacral spine. The veteran stated that he is also unable to lift more than 10-15 pounds without inducing back trouble, and on occasion, when walking for moderate distances he will suddenly experience low back pain. Normal range of motion of the lumbar spine is flexion from zero to 90 degrees, extension is zero to 30 degrees, right and left lateral flexion are zero to30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion is 240 degrees. The veteran's range of motion testing in May 2003 showed flexion of 80 degrees, extension of 20 degrees, right and left lateral flexion of 25 degrees, and right and left rotation of 20 degrees. The combined range of motion for the lumbar spine is 190 degrees. The VA examiner diagnosed the veteran with degenerative disc disease, lumbosacral spine, with a history of prior back injury in 1991 and associated with recurrent low back pain with weightbearing activity. The VA radiology report indicated that minimal dextroscoliosis of the upper lumbar spine was apparent, and that small marginal osteophytes were present at all levels in the lumbar spine. The vertebras were normal height and the disc spaces were maintained. The radiological impression indicated mild lumbar spondylosis. Under DC 5295, an evaluation in excess of 10 percent is not warranted, as no evidence, including the radiology report, shows that this disability is manifested by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, or severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. The range-of-motion testing showed no evidence of marked limitation of forward bending, as the veteran was able to flex forward to 80 degrees, which is only 10 degrees less than normal. Thus, the Board finds no basis to assign a disability rating greater than 10 percent under DC 5295. With respect to the pre-September 2003 rating criteria for intervertebral disc syndrome, DC 5293, the Board notes that the evidence does not establish the occurrence of incapacitating episodes due to low back pain. There is no indication in the record that a physician has ever prescribed bed rest because of the veteran's low back disability. Also, an increased rating is not warranted as there were no significant neurological findings shown at his May 2003 VA examination, as ankle reflexes were +2 bilaterally, his gait on a level surface appeared stable, and he could carry some weight on his toes and heels without difficulty. In short, a disability rating higher than 10 percent is not warranted under DC 5293. The Board has also carefully reviewed the May 2003 VA examination reports as well as VA treatment record dated from 1996 to 1999 and private chiropractic records from 1999 to 2003. None of the evidence indicates that the veteran's thoracolumbar spine is ankylosed, as motion is possible in every direction; that forward flexion is limited to 60 degrees or less; that the combined motion of the thoracolumbar spine is less than 120 degrees; or that a muscle spasm or guarding result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In short, a disability rating higher than 10 percent is not warranted under the newly revised General Rating Formula for Diseases and Injuries of the Spine, even with consideration of the veteran's complaints of pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition to the criteria listed at DC 5293, 5295, and 5243, the Board must also consider whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA exam shows that the veteran has range of motion far greater than is required for an increased rating; however, the veteran reported low back pain, which was substantiated by the VA examiner who indicated that the veteran had a mild degree of tenderness at the lumbosacral junction. The examiner also indicated that the veteran experienced pain with weightbearing activity and was unable to lift more than 10-15 pounds without inducing pain, or walk moderated distances without triggering back pain. The Board recognizes the veteran's complaints; however, it is important for the veteran to understand that without consideration of pain the current evaluation could not be justified. With regard to private treatment records and the accident of 1999, it is important for the veteran to understand that it is the VA examination that does not provide a basis to grant this claim. The objective results of the VA examination (which indicated a "mild" tenderness) do not meet the requirements of a higher evaluation. The Board has not based this decision on the private chiropractor's findings, which also do not support this claim. The veteran's contention that he is entitled to a higher evaluation is outweighed by the post-service medical records that clearly indicate that he does not meet the standards for a higher evaluation. Thus, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his degenerative disc disease of the lumbosacral spine. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claims for increase, that doctrine is not applicable in the instant appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Duty to Notify and Duty to Assist 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ and notified of effective dates. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient records and records from private medical providers. The veteran was afforded a VA medical examination in May 2003. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a disability rating greater than 10 percent is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs