Citation Nr: 0809681 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-06 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating higher than 30 percent for residuals of right inguinal hernia. 2. Entitlement to a rating higher than 20 percent for herniated disc, L5-S1. 3. Entitlement to a rating higher than 10 percent for Morton's interdigital neuritis. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from August 1989 to November 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in September 2002, of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2007, the veteran failed to appear for a scheduled hearing before the Board. FINDINGS OF FACT 1. The residuals of right inguinal hernia are manifested by a small, postoperative, recurrent, reducible hernia, which is not inoperable. 2. The herniated disc, L5-S1, is manifested by limitation of flexion to 40 degrees without listing of the whole spine to the opposite side; severe recurring attacks of sciatic neuropathy are not shown; flexion is greater than 30 degrees; incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during a period of 12 months are not shown; and neurological manifestations or objective neurological abnormalities are not shown. 3. Morton's interdigital neuritis has been manifested by pain and numbness, but a moderately severe foot disability is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for residuals of right inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 4.114, Diagnostic Code 7338 (2007). 2. The criteria for a rating higher than 20 percent for herniated disc, L5-S1, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5295 (prior to September 26, 2003); Diagnostic Code 5293 (prior to September 23, 2002, and prior to September 26, 2003); and Diagnostic Codes 5237, 5243 (2007) (from September 26, 2003, and currently). 3. The criteria for a rating higher than 10 percent for Morton's interdigital neuritis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5279, 5284 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to the claims. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 claims for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claims, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Also, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in July 2002. The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased. The veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The veteran was asked to submit any evidence that would include that in his possession. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim, except for the degree of disability assignable and for the effective date of the claims); and of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008) (evidence demonstrating an increase in severity, except for the effect that worsening has on employment and daily life and for the general notice of the criteria of the Diagnostic Codes under which the claimant is rated). To the extent that the VCAA notice, pertaining to the degree of disability assignable and to effective date of the claims, was not provided as the claims for increase are denied, no disability rating or effective date can be assigned as a matter of law and therefore there is no possibility of any prejudice to the veteran with respect to this VCAA content error. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). To the extent that the VCAA notice did not include the effect that worsening has on employment and daily life and the general notice of the criteria of the Diagnostic Codes under which the claimant is rated, when the veteran already has notice of the pertinent Diagnostic Codes and rating criteria as provided in the statement of the case and in the supplemental statement of the case, dated in May 2007, there is no reasonable possibility that further notice of the exact same information would aid in substantiating the claims. As the content error did not affect the essential fairness of the adjudication of the claims for increase, the presumption of prejudicial error as to the content error in the VCAA notice is rebutted. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. The RO has obtained VA records and afforded the veteran a VA examination. The veteran, without good cause shown, failed to report for VA reexaminations in December 2003, in June 2006, and in May 2007. As the veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Policy Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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 will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Residuals of Right Inguinal Hernia Factual Background On VA examination in August 2002, the examiner noted that the veteran had a right hernia repaired in 2001. The pertinent findings were a small, postoperative, recurrent, reducible right inguinal hernia, which was not inoperable. Analysis The service-connected residuals of the right inguinal hernia are currently rated 30 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7338. Under Diagnostic Code 7338, the criteria for the next higher rating, 60 percent, are large, postoperative, recurrent hernia, which is not well supported under ordinary conditions and not readily reducible, when considered inoperable. The difference between the criteria for a 30 percent rating and a 60 percent rating are that for a 60 percent rating there must a large hernia, which is not well supported under ordinary conditions and not readily reducible, when considered inoperable. As the veteran has a small, reducible hernia, which is not inoperable, the criteria for the next higher rating under Diagnostic Code 7338 have not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Herniated Disc, L5-S1 Factual Background On VA examination in August 2002, the veteran complained of radiating pain down the right leg. A MRI revealed a disc bulge at L4-5. Upon physical examination, there was no muscle spasm or tenderness. Flexion was to 40 degrees with pain, extension was to 10 degrees, lateral flexion, right and left, was to 20 degrees, and rotation, right and left, was to 20 degrees. Range of motion was limited by pain. Posture and gait were normal. X-rays revealed mild lower lumbar dextroscoliosis and minimal diffuse spondylosis. VA records from 2001 to 2007 document the veteran's complaints of back pain. In September 2003, it was noted the veteran's back pain was worse with activity and his job as a dialysis technician often made the pain worse with heavy lifting. In January 2004, flexion was limited to 75 percent, extension was limited to 25 percent on the right, lateral flexion was painful on the right. In June 2004, the veteran quit his job as a dialysis technician and went back to school. He continued to complain of increasing radiating back pain. In January 2006, there was normal range of motion with rotation and lateral flexion was 45 degrees. In May 2006, there was normal range of motion with forward flexion, extension, and rotation. Lateral flexion was limited on the right and normal on the left. No neuropathic signs were noted. In May 2007, there was normal range of motion upon flexion and extension and minimal discomfort with lateral flexion. Rating Criteria During the pendency of the appeal, the rating criteria for rating a disability of the spine were amended. The Board is required to consider the claim in light of both the old and new criteria to determine whether an increase is warranted. If the amended rating criteria are favorable to the claim, the amended criteria can be applied only from and after the effective date of the regulatory change. The veteran does get the benefit of having both the old and new criteria considered for the period after the change was made. VAOPGCPREC 3-2000. When rating a disability of the musculoskeletal system, functional loss due pain, weakened movement, and fatigability are factors to be considered. 38 C.F.R. §§4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In any form of arthritis, painful motion is also a factor. 38 C.F.R. § 4.59. For VA rating purposes, the normal ranges of motion of the thoracolumbar spine are forward flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, 30 degrees, and rotation, right and left, 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. The herniated disc, L5-S1 is currently rated under Diagnostic Code 5293 for intervertebral disc syndrome and Diagnostic Code 5295 for lumbosacral strain. Since the veteran filed his claim for increase, the criteria for evaluating a disability of the spine have changed. The criteria for intervertebral disc syndrome under Diagnostic Code 5293 (hereinafter old criteria) were revised on September 23, 2002, (hereinafter the interim criteria). On September 26, 2003, the interim criteria were revised, which included the renumbering of Diagnostic Code 5293 to Diagnostic Code 5243 (hereinafter the new or current criteria). Under the old Diagnostic Code 5293, prior to September 2002, the criteria for the next higher rating, 40 percent, were severe degenerative disc disease with recurring attacks with intermittent relief. Under the interim criteria for Diagnostic Code 5293, prior to September 2003, degenerative disc disease could be rated by combining separate ratings for chronic neurologic and orthopedic manifestations, or rated on the basis of the total duration of incapacitating episodes, whichever method results in a higher rating. The criteria for the next higher rating, 40 percent, based on incapacitating episodes, are incapacitating episodes having a total duration of at least 4 but less than 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Effective from September 26, 2003, Diagnostic Code 5293 was renumbered as Diagnostic Code 5243. And degenerative disc disease is rated under either the General Rating Formula to include objective neurologic abnormalities or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, in which there was no change in the total duration or the definition of an incapacitating episodes as provided in the interim criteria, the criteria for the next higher rating, 40 percent, are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months As for lumbosacral strain under Diagnostic Code 5295, the criteria were also revised as of September 2003. Under the old Diagnostic Code 5295, lumbosacral strain, prior to September 2003, the criteria for the next higher rating, 40 percent, were severe listing of the whole spine to 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 joint space, or some of the above with abnormal mobility on forced motion. The other potentially applicable Diagnostic Code was Diagnostic Code 5292. Under Diagnostic Code 5292, prior to September 2003, the criterion for the next higher rating, 40 percent, was severe limitation of motion. Diagnostic Code 5292 was also revised as of September 2003. Effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) replaced the old rating criteria under various Diagnostic Codes, including Diagnostic Codes 5295 and 5292, and either eliminated or renumbered the old Diagnostic Codes. Under the General Rating Formula, orthopedic manifestations, such as limitation of motion to include painful motion, are rated separately. Diagnostic Code 5295 was renumbered as Diagnostic Code 5237, and Diagnostic Code 5292 was eliminated. Under the General Rating Formula, objective neurologic abnormalities are separately rated under the appropriate Diagnostic Code. Under the General Rating Formula, the criterion for the next higher rating, 40 percent, based on limitation of motion is flexion of the lumbar spine to 30 degrees or less. Throughout the appeal, there was no change in the criteria for rating neurologic manifestations or abnormalities under the appropriate Diagnostic Code, in this case, Diagnostic Code 8520, pertaining to incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, the criterion for a 10 percent is mild incomplete paralysis. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124(a). Analysis Diagnostic Code 5293 (Old and Interim) Diagnostic Code 5243 (New or Current) To warrant a rating higher than 20 percent for degenerative disc disease of the lumbar spine under the old criteria, Diagnostic Code 5293, the veteran would have to have severe degenerative disc disease with recurring attacks with intermittent relief. The record shows that the veteran has complained of chronic back pain, including during his VA examination of August 2002. And while a MRI revealed a disc bulge, no neuropathic signs or neurological defects have been documented. On the basis of the above, the symptoms do not more nearly approximate or equate to severe symptoms of recurring attacks compatible with sciatica neuropathy, such as absent ankle reflexes or other neurological findings appropriate to the site of the disc disease. Accordingly, without documentation of such recurring attacks, the criteria for the next higher rating under the old Diagnostic Code 5293 are not met. Under the interim Diagnostic Code 5293, prior to September 2002, the criteria for the next higher rating, 40 percent, are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As no incapacitating episodes were documented, the criteria for the next higher rating under the interim Diagnostic Code 5293 have not been met. Also under the interim Diagnostic Code 5293, degenerative disc disease could also be rated on the basis of chronic orthopedic and neurologic manifestations with the disability rated under the method that results in the higher rating. The potential Diagnostic Codes for orthopedic manifestations are Diagnostic Code 5292 (limitation of motion of the lumbar spine) and Diagnostic Code 5295 (lumbosacral strain). Under Diagnostic Code 5292, limitation of motion of the lumbar spine, the criterion for next high rating, 40 percent, is severe limitation of motion. On VA examination in 2002, flexion was to 40 degrees with pain, extension was 10 degrees, right and left lateral was 20 degrees and right and left rotation was 20 degrees. There was no muscle spasm or tenderness. As the veteran had motion in all planes, flexion, extension, lateral flexion, and rotation, and as flexion was at 50 degrees less than normal, as extension was at most only 10 degrees less than normal, as lateral flexion was 10 degrees less than normal, and rotation was 10 degrees less than normal, which is more than a 50 percent of the normal combined range of motion of the lumbar spine, the Board finds that the limitations of motion on the VA examination was moderate rather than severe under the old Diagnostic Code 5292. Also without evidence of listing of the spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or abnormal mobility on forced motion, the findings do not more nearly approximate or equate to severe lumbosacral strain, the criteria for the next higher rating under the old DC 5295. And while a MRI revealed a disc bulge, no neuropathic signs or neurological defects have been documented. In the absence of a finding of neurological manifestations, the criterion for a separate rating under Diagnostic Code 8520 have not been met. Under the new or current criteria, since September 2003, the rating for degenerative disc disease can be based on the total duration of incapacitating episodes or under the General Rating Formula to include a separate rating for objective neurologic abnormalities, whichever method results in a higher rating. As explained above, there was no change in the total duration of incapacitating episodes or in the definition of an incapacitating episode in the new or current criteria. As no incapacitating episodes were documented, the criteria for the next higher rating under the new or current Diagnostic Code 5243 have not been met. Alternatively, under the General Rating Formula, the criteria for the next higher rating, 40 percent, are forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. On VA examination in examination in 2002, flexion was to 40 degrees. There was no ankylosis. As forward flexion of the thoracolumbar spine was 40 degrees, flexion does not approximate or equate to flexion of 30 degrees or less, and as ankylosis was not shown, the criteria for the next higher rating have not been met. Also, under the General Rating Formula, objective neurologic abnormalities can be separately rated under Diagnostic Code 8520, and the criterion for a 10 percent rating is mild incomplete paralysis. And while a MRI revealed a disc bulge, no neuropathic signs or neurological defects have been documented. In the absence of a finding of neurological manifestations, the criterion for a separate rating under Diagnostic Code 8520 have not been met. Diagnostic Code 5295 (Old) and Diagnostic Code 5237(New or Current) To warrant a rating higher than 20 percent under the old criteria for lumbosacral strain, DC 5295, the veteran would have to have severe lumbosacral strain. On VA examination in 2002, flexion was to 40 degrees with pain, extension was 10 degrees, right and left lateral was 20 degrees and right and left rotation was 20 degrees. There was no muscle spasm or tenderness. Without evidence of listing of the spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or abnormal mobility on forced motion, the findings do not more nearly approximate or equate to severe lumbosacral strain, the criteria for the next higher rating under the old DC 5295. Under the other potential Diagnostic Code for orthopedic manifestations, Diagnostic Code 5292 (limitation of motion of the lumbar spine), the criterion for next high rating, 40 percent, is severe limitation of motion. On VA examination in 2002, flexion was to 40 degrees with pain, extension was 10 degrees, right and left lateral was 20 degrees and right and left rotation was 20 degrees. There was no muscle spasm or tenderness. As the veteran had motion in all planes, flexion, extension, lateral flexion, and rotation, and as flexion was at 50 degrees less than normal, as extension was at most only 10 degrees less than normal, as lateral flexion was 10 degrees less than normal, and rotation was 10 degrees less than normal, which is more than a 50 percent of the normal combined range of motion of the lumbar spine, the Board finds that the limitations of motion on the VA examination was moderate rather than severe under the old Diagnostic Code 5292. Under the new and current General Rating Formula, Diagnostic Code 5237, from September 2003, the criteria for the next higher rating, 40 percent, are forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. On VA examination in August 2002, forward flexion was to 40 degrees. There was evidence of ankylosis. As forward flexion of the thoracolumbar spine was 40 degrees, the finding does not approximate or equate to forward flexion of the thoracolumbar spine to 30 degrees or less, and as ankylosis was not shown, the criteria for the next higher rating have not been met. Also, under the General Rating Formula, objective neurologic abnormalities can be separately rated under Diagnostic Code 8520, and the criterion for a 10 percent rating is mild incomplete paralysis. And while a MRI revealed a disc bulge, no neuropathic signs or neurological defects have been documented. In the absence of a finding of neurological manifestations, the criterion for a separate rating under Diagnostic Code 8520 have not been met. For the above reasons, the preponderance of the evidence is against the claim for a rating higher than 20 percent for herniated disc, L5-S1, under the old, interim, and new or current criteria of Diagnostic Code 5293/Diagnostic Code 5243 and the old and new or current criteria of Diagnostic Code 5295/Diagnostic Code 5237. 38 U.S.C.A. § 5107(b). Morton's Interdigital Neuritis Factual Background On VA examination in August 2002, the examiner described a neuroma, near the head of the fourth metatarsal on the right foot. The veteran complained of a sharp painful sensation with pain, swelling, and fatigue with standing, walking and sometimes at rest. On physical examination, the veteran had minor pain to palpation at the fourth metatarsal on the plantar surface. He did not have pes planus, pes cavus, hammer toes, hallux rigidus, hallux valgus, and he had no limited function of standing or walking. In July 2005, VA records show that the veteran complained of numbness to the plantar surface of his right foot. Analysis Morton's neuroma is currently rated 10 percent under Diagnostic Code 5279 for anterior metatarsalgia, which is the maximum rating under this Diagnostic Code. A potential higher rating may be established under Diagnostic Code 5284 for other foot injuries. The criterion for the next higher rating, 20 percent, is a moderately severe foot disability. On VA examination in August 2002, the veteran complained of painful sensation with swelling and fatigue. Upon physical evaluation, he had minor pain to palpation of the fourth metatarsal on the plantar surface. He had no limited function of standing or walking. As the pain is limited to the plantar surface of the fourth metatarsal and in the absence of impairment of balance or propulsion, involving the entire foot, the pain associated with the neuroma does not more nearly approximate or equate to moderately severe impairment of the right foot. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER A rating higher than 30 percent for residuals of right inguinal hernia is denied. A rating higher than 20 percent for herniated disc, L5-S1 is denied. A rating higher than 10 percent for Morton's Interdigital Neuritis is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs