Citation Nr: 0809849	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  06-04 524	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent 
for postoperative residuals herniated nucleus pulposus 
lumbosacral spine with thoracic dextroscoliosis T7-8 with 
residual myofascial syndrome.

2. Entitlement to an initial rating in excess of 10 percent 
for left shoulder impingement syndrome, status post 
arthroscopic surgery.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Rebecca N. Poulson, Associate Counsel


INTRODUCTION

The veteran served on active duty from July 1984 to May 2005.

This matter is before the Board of Veterans' Appeals (Board) 
from rating decisions by the Department of Veterans Affairs 
(VA) Regional Office (RO) in Waco, Texas.  In the June 2005 
decision, the RO, in pertinent part, granted service 
connection for (1) postoperative residuals, herniated nucleus 
pulposus, lumbosacral spine, L5-S1, evaluating it at 10 
percent disabling from June 1, 2005, and (2) thoracic 
dextroscoliosis, T7-8 with residual myofascial syndrome, 
evaluating it at zero percent disabling from June 1, 2005.  
The RO issued a notice of the decision in July 2005, and the 
veteran timely filed a Notice of Disagreement (NOD) in 
October 2005.  The RO provided a Statement of the Case (SOC) 
in December 2005 and thereafter, in February 2006, the 
veteran timely filed a substantive appeal.  In a November 
2006 rating decision, the RO determined that it had committed 
clear and unmistakable error (CUE) in its June 2005 decision 
to assign separate evaluations for the veteran's lumbosacral 
spine and thoracic spine disabilities.  The RO continued the 
postoperative residuals, herniated nucleus pulposus 
lumbosacral spine L5-S1 and added thoracic dextroscoliosis, 
T7-8 with residual myofascial syndrome, evaluating this 
condition at 10 percent disabling from June 1, 2005.  The RO 
supplied notice of this decision in December 2006.  The 
veteran did not disagree with this latter decision. 

Also in June 2005, the RO granted service connection for left 
shoulder impingement syndrome, status post arthroscopic 
surgery, evaluating it at 10 percent disabling from June 1, 
2005.  In the February 2006 Form 9 that the veteran filed 
with respect to the above-referenced back issues, he stated 
"I am also submitting additional information on my 
shoulder."  Attached to the Form 9 was a private provider 
medical record concerning his left shoulder.  The Board 
construes this correspondence as a timely NOD with the June 
2005 RO determination.  See 38 C.F.R. §§ 20.201, 20.302 
(2007); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) 
(VA must liberally construe all documents filed by a 
claimant).  Congress has created the veterans' benefits 
system to be both "paternalistic" and "uniquely pro-
claimant."  See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 
2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); 
Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000).  VA has a 
duty to fully and sympathetically develop a claimant's claim 
to its optimum.  Hodge v. West, 155 F.3d 1356, 1362 (Fed. 
Cir. 1998).  This duty requires VA to "determine all 
potential claims raised by the evidence, applying all 
relevant laws and regulations," Roberson v. West, 251 F.3d 
1378, 1384 (Fed. Cir. 2001), and extends to giving a 
sympathetic reading to all pro se pleadings of record. 
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).  
The record reflects that the RO has not issued the requisite 
SOC with respect to this issue pursuant to 38 C.F.R. 
§ 20.200, and therefore, the Board must remand this issue for 
proper issuance of an SOC, and to provide the veteran an 
opportunity to perfect an appeal of the issue thereafter by 
filing a timely substantive appeal.  Manlincon v. West, 12 
Vet. App. 238, 240-41 (1999).

The issues on the title page have been recharacterized to 
more accurately reflect the veteran's claims. 

The veteran did not request a hearing on this matter.

Other Matters

In a September 2006 rating decision, the RO denied the 
veteran's claims for service connection for a cervical spine 
condition and a lung condition.  The veteran has not filed a 
NOD with respect to either claim.  Therefore, these claims 
are not on appeal.

In the June 2005 rating decision, the RO also granted service 
connection for (1) postoperative residuals, excision, 
spermatocele, evaluating it at zero percent disabling from 
June 1, 2005, and (2) scar, postoperative residuals, 
excision, spermatocele, evaluating it at zero percent 
disabling from June 1, 2005.  The veteran timely filed a NOD 
in October 2005 with respect to the postoperative residuals, 
excision, spermatocele issue only.  The RO provided a SOC in 
December 2005.  In November 2006, the RO submitted a SSOC 
with respect to the scar issue.  The Board notes that the 
veteran appealed only the postoperative residuals rating, as 
opposed to the scar rating.  In any event, the veteran did 
not perfect his appeal for a higher rating for this condition 
by submitting a substantive appeal.  The Board may only 
exercise jurisdiction over an issue after an appellant has 
filed both a timely notice of disagreement to a rating 
decision denying the benefit sought, and a timely substantive 
appeal.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 
(2007); Roy v. Brown, 5 Vet. App. 554 (1993).  Accordingly, 
the Board does not have jurisdiction over the issue of an 
increased rating for postoperative residuals, excision, 
spermatocele.

The issue of an increased rating for the veteran's left 
shoulder disability is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.  VA will notify 
the appellant if further action is required.


FINDING OF FACT

The veteran's service-connected back disability is manifested 
by essentially full range of motion of the thoracolumbar 
spine with subjective complaints of pain; there is no 
competent evidence of incapacitating episodes of 
intervertebral disc disease of any duration, a showing of 
muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour, or an associated 
compensable neurological disorder, including but not limited 
to bowel or bladder impairment.  


CONCLUSION OF LAW

The criteria for an initial or staged rating in excess of 10 
percent for service-connected postoperative residuals 
herniated nucleus pulposus lumbosacral spine with thoracic 
dextroscoliosis T7-8 with residual myofascial syndrome have 
not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 
4.45, 4.59, 4.71a, Diagnostic Code 5243 (2007).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002), significantly changed the law 
prior to the pendency of this claim.  VA has issued final 
regulations to implement these statutory changes.  See 38 
C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  The VCAA 
provisions include an enhanced duty to notify a claimant as 
to the information and evidence necessary to substantiate a 
claim for VA benefits, and they redefine the obligations of 
VA with respect to the duty to assist the veteran with the 
claim.  

a.  Duty to Notify 

VA has a duty to notify the veteran of any information and 
evidence needed to substantiate and complete a claim.  38 
U.S.C.A. §§ 5102, 5103.  The Board concludes that an undated 
letter and a December 2005 letter sent to the veteran by the 
RO adequately apprised him of the information and evidence 
needed to substantiate the claim.

In order to meet the requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the 
claimant about the information and evidence necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request that the 
claimant provide any evidence in his possession that pertains 
to the claim.  Beverly v. Nicholson, 19 Vet. App. 394, 403 
(2005) (outlining VCAA notice requirements).  

Additionally, during the pendency of this appeal, on March 3, 
2006, the Court of Appeals for Veterans' Claims (Court) 
issued a decision in Dingess v. Nicholson, 19 Vet. App. 473,  
484, 486 (2006), which held that the VCAA notice requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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.  The Court held that upon 
receipt of an application for a service connection claim, 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim and to provide the claimant with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating or is necessary to substantiate 
the elements of the claim as reasonably contemplated by the 
application.  Id. at 486.  Additionally, this notice must 
include notice that a disability rating and an effective date 
for the award of benefits will be assigned if service 
connection is awarded.  Id.  

The undated and December 2005 letters clearly disclosed VA's 
duty to obtain certain evidence for the veteran, such as 
medical records and records held by any Federal agency, 
provided the veteran gave consent and supplied enough 
information to enable their attainment.  This correspondence 
made clear that although VA could assist the veteran in 
obtaining these records, he carried the ultimate burden of 
ensuring that VA received all such records.  The letters 
additionally apprised the veteran that VA would schedule a 
medical examination or obtain a medical opinion for him if 
the RO determined such to be necessary to make a decision on 
the claim, and also asked the veteran to provide VA with any 
other supporting evidence in his possession.  The December 
2005 letter also provided notice about the type of evidence 
needed to substantiate the veteran's claim, namely, that his 
service connected condition was more severe than reflected by 
the ratings assigned.

The Board also recognizes that, according to Pelegrini v. 
Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice 
must "precede an initial unfavorable [agency of original 
jurisdiction (AOJ)] decision on a service-connection claim."  
VA did not provide initial rating notice to the veteran prior 
to the June 2005 RO decision that is the subject of this 
appeal.  However, the Board is cognizant of VAOPGCPREC 8-2003 
(Dec. 22, 2003), wherein VA's General Counsel held that a 
claim-specific notice letter is not required when appealing a 
"downstream issue" (i.e., a claim for a higher initial rating 
or earlier effective date) from a decision awarding benefits, 
where sufficient notice was already provided as to the 
benefit granted as in this case for the veteran's low back 
disability.  

With respect to the Dingess requirements, the veteran was 
provided with notice of the type of evidence necessary to 
establish a rating and effective date for a rating in a March 
2006 letter.  This notice was not provided to the veteran 
prior to the June 2005 RO decision.  Where such a timing 
error occurred, the Board must presume that the error was 
prejudicial, and VA bears the burden of rebutting said 
presumption.  Sanders, 487 F.3d at 886, 891 (recognizing that 
"VCAA notice errors are reviewed under a prejudicial error 
rule" and holding that "all VCAA notice errors are presumed  
prejudicial and . . . VA has the burden of rebutting this 
presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 
103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328  
(Fed. Cir. 2006).  

An error "whether procedural or substantive, is prejudicial 
when [it] affects a substantial right so as to injure an 
interest that the statutory or regulatory provision involved 
was designed to protect such that the error affects 'the 
essential fairness of the [adjudication].'"  Mayfield, supra, 
at 116; accord Sanders, supra, at 891 ("this opinion does not 
. . . change the rule that reversal requires the essential 
fairness of the adjudication to have been affected").  That 
is, "the key to determining whether an error is prejudicial 
is the effect of the error on the essential fairness of the 
adjudication."  Mayfield, supra; accord Sanders, supra. "  
[A]n error is not prejudicial when [it] did not affect 'the 
essential fairness of the [adjudication],'"  see Mayfield, 
supra, at 121, and non- prejudicial error may be proven by a 
showing that "the purpose of [VCAA] notice was not 
frustrated, e.g., by demonstrating: (1) that any defect was 
cured by actual knowledge on the part of the claimant, (2) 
that a reasonable person could be expected to understand from 
the [defective] notice what was needed, or (3) that a benefit 
could not have been awarded as a matter of law." Sanders, 
supra, at 889; accord Dalton v. Nicholson, 21 Vet. App. 23, 
30 (2007) (determining that no prejudicial error to veteran 
resulted in defective VCAA notice when the veteran, through 
his counsel, displayed actual knowledge of the information 
and evidence necessary to substantiate his claim).  
Accordingly, "there could be no prejudice if the purpose 
behind the notice has been satisfied . . . that is, affording 
a claimant a meaningful opportunity to participate 
effectively in the processing of [the] claim. . . ."  
Mayfield, supra, at 128.

In the instant case, the Board determines that any presumed 
prejudice to the veteran as a result of the belated Dingess 
notice has been rebutted.  Timely notice of the two Dingess 
elements regarding effective dates and disability ratings 
would not have operated to alter the outcome in the instant 
case where evidence establishing an increased rating with 
respect to the veteran's back disability is lacking.  
Sanders, supra (recognizing that "a demonstration that the 
outcome would not have been different in the absence of the 
error would demonstrate that there was no prejudice").  In 
view of the foregoing, the Board cannot conclude that this 
defect in notice affected the essential fairness of the 
adjudication, and therefore, the presumption of prejudice is 
rebutted.  Id. 

b.  Duty to Assist

VA also has a duty to assist the veteran in obtaining 
evidence necessary to substantiate the claim.  38 U.S.C.A. § 
5103A(a) ("The Secretary shall make reasonable efforts to 
assist a claimant in obtaining evidence necessary to  
substantiate the . . . claim").  This duty includes assisting 
the veteran in obtaining records and providing medical 
examinations or obtaining medical opinions when such are 
necessary to make a decision on the claim.  38 U.S.C.A. § 
5103A(b), (c), (d) (setting forth Secretary's various duties 
to claimant).  

VA informed the veteran of its duty to assist in obtaining 
records and supportive evidence, and the veteran in fact did 
receive a May 2005 VA general medical examination and a June 
2006 VA spine examination, which were thorough in nature and 
adequate for the purposes of deciding this claim.  The Board 
finds that the medical evidence of record is sufficient to 
resolve this appeal, and the VA has no further duty to 
provide an examination or opinion.  38 U.S.C.A. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).  

Based on the foregoing, the Board finds that the VA fulfilled 
its VCAA duties to notify and to assist the veteran, and 
thus, no additional assistance or notification was required.  
The veteran has suffered no prejudice that would warrant a 
remand, and his procedural rights have not been abridged.  
See Bernard, 4 Vet. App. at 392-94. 

II. Laws and Regulations

a. Disability Ratings

38 U.S.C.A. § 1155 sets forth provisions governing disability 
ratings, and it directs the Secretary to "adopt and apply a 
schedule of ratings of reductions in earning capacity from 
specific injuries or combination of injuries."  The schedule 
of ratings must provide for ten grades of disability, and no 
more, ranging from 10 percent to 100 percent in 10 percent 
intervals, upon which the payments of compensation shall be 
based.  38 U.S.C.A. § 1155.  In addition, "the Secretary 
shall from time to time readjust this schedule of ratings in 
accordance with experience."  38 U.S.C.A. 
§ 1155.

To this end, the Secretary promulgated 38 C.F.R. § 3.321(a), 
which requires the use of a "Schedule for Rating Disabilities 
. . . for evaluating the degree of disabilities  in claims 
for disability compensation . . . and in eligibility 
determinations."  The provisions contained in the rating 
schedule approximate the average impairment in  earning 
capacity in civil occupations resulting from a disability.  
38 C.F.R. 
§ 3.321(a); accord 38 U.S.C.A. § 1155 ("The ratings shall be 
based, as far as practicable, upon average impairments of 
earning capacity resulting from such  injuries in civil 
occupations").  Separate diagnostic codes pertain to the 
various disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. Part 
4.  

38 C.F.R. § 4.71a sets forth the schedule of ratings for the 
musculoskeletal system, to include disabilities of the spine.  
Under Diagnostic Code 5243, a veteran, 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, will generate a 20 percent 
rating with forward flexion of the thoracic lumbar spine 
greater than 30 degrees but not greater than 60 degrees, or a 
combined range of motion of the thoracolumbar spine not 
greater than 120 degrees.  A veteran will receive a 40 
percent rating when he exhibits forward flexion of the 
thoracolumbar spine 30 degrees or less; or favorable 
ankylosis of the entire thoracolumbar spine.  The next higher 
rating of 50 percent will be awarded when a veteran displays 
unfavorable ankylosis of the entire thoracolumbar spine, and 
a veteran will generate the maximum 100 percent evaluation if 
he has unfavorable ankylosis of the entire spine.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5243 (2007).

The Board additionally comments that Note (1) accompanying 
the General Rating Formula for Diseases and Injuries of the 
Spine advises that the evaluating entity should assess any 
associated objective neurological abnormalities separately, 
to include bowel or bladder impairment.  38 C.F.R. § 4.71a, 
Note (1) (2007).  Also, according to Note (2), 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. 38 C.F.R. § 4.71a, Note (2) (2007).  The combined 
range of motion refers to the sum of the range of forward 
flexion, extension, left and right lateral flexion, and left 
and right rotation.  The normal combined range of motion of 
the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, 
Note (2) (2007).

With respect to intervertebral disc syndrome (IDS), 
Diagnostic Code 5243 directs that VA should evaluate this 
disorder under either the General Rating Formula for Diseases 
and Injuries of the Spine, outlined above, or under the 
Formula for Rating IDS Based on Incapacitating Episodes, 
whichever method results in a higher evaluation when all 
disabilities are combined under 38 C.F.R. § 4.25.  A veteran 
with IDS who has incapacitating episodes for at least two 
weeks but less than four weeks during the past year will 
receive a 20 percent rating, whereas he will generate a 40 
percent evaluation with IDS accompanied by incapacitating 
episodes totaling at least four weeks, but less than six 
weeks during the past year.  A veteran who has IDS and 
incapacitating episodes for at least six weeks during the 
past year will garner a maximum 60 percent rating under this 
Formula.  The regulations define "incapacitating episode" as 
a period of acute signs and symptoms due to IDS that requires 
bed rest prescribed by a physician and treatment by a 
physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 
(1).

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.  The combined range of motion refers to the sum of 
the range of forward flexion, extension, left and right 
lateral flexion, and left and right rotation.  The normal 
combined range of motion of the 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.  See 
Note (2) after 38 C.F.R. § 4.71a, Diagnostic Code 5243.  See 
also 38 C.F.R. § 4.71a, Plate V. 

In addition, the Board comments that, in addition to a rating 
for orthopedic impairment (here limitation of motion), the 
evaluating entity should assess any associated objective 
neurological abnormalities separately, to include bowel or 
bladder impairment and radiculopathy.  38 C.F.R. § 4.71a, 
Note (1).  Thus, when a veteran has separate and distinct 
manifestations attributable to a single injury, he should be 
compensated for these different manifestations under 
different Diagnostic Codes.  See Esteban v. Brown, 6 Vet. 
App. 259 (1994).

DeLuca Factors 

The Board will also consider whether this case presents other 
evidence that would support a higher rating on the basis of 
functional limitation due to weakness, fatigability, 
incoordination, or pain on movement of a joint.  See 38 
C.F.R. §§ 4.10, 4.40 ("Disability of the musculoskeletal 
system is primarily the inability, due to damage . . in parts 
of the system, to perform the normal working movements of the 
body with normal excursion, strength, speed, coordination and 
endurance.  It is essential that the examination on which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all these 
elements"), 4.45, 4.59 (2007); DeLuca v. Brown, 8 Vet. App. 
202, 206-07 (1995).  Functional loss due to pain must be 
supported by adequate pathology and evidenced by the visible 
behavior of a claimant.  38 C.F.R. § 4.40; accord Johnston v. 
Brown, 10 Vet. App. 80, 85 (1997).  Additionally, "[w]eakness 
is as important as limitation of motion, and a part which 
becomes painful on use must be regarded as seriously 
disabled."  38 C.F.R. § 4.40.  The Board observes that 38 
C.F.R. § 4.40 does not require a separate rating for pain.  
See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).

b. Fenderson Appeal

In the instant case, the veteran has challenged the initial 
disability rating for PTSD, as opposed to having filed a 
claim for an increased rating.  See Fenderson v. West, 12 
Vet. App. 119, 125-26 (1999) (noting distinction between 
claims stemming from an original rating versus increased 
rating).  The veteran thus seeks appellate review of the RO's 
initial disability rating because of his dissatisfaction with 
the 50 percent rating.  See id.  

In a Fenderson appeal, separate ratings may be assigned for 
separate periods of time based on the facts found, a practice 
known as "staged" rating.  Id. at 126.  The Board further 
notes that the rule that "the present level of disability is 
of primary importance," does not apply to a Fenderson appeal.  
Id. (recognizing that this rule "is not applicable to the 
assignment of an initial rating for a disability following an 
initial award of service connection for that disability") 
(internal quotation marks omitted); cf. Francisco v. Brown, 7 
Vet. App. 55, 58 (1994) (applying rule in increased rating 
case).  Instead, the Board gives consideration to all the 
evidence of record from the date of the veteran's claim.  
Fenderson, 12 Vet. App. at 126-27.   Additionally, "[w]hen 
after careful consideration of all procurable and assembled 
data, a reasonable doubt arises regarding the degree of 
disability such doubt will be  resolved in favor of the 
[veteran]."  38 C.F.R. § 4.3.  "Where there is a question as 
to which of two evaluations shall be applied, the higher 
evaluation will be assigned if the disability picture more 
nearly approximates the criteria required for that rating."  
38 C.F.R. § 4.7. 

c. Standard of Proof

38 U.S.C.A. § 5107 (West 2002) sets forth the standard of 
proof applied in decisions on claims for veterans' benefits.  
A veteran will receive the benefit of the doubt when an 
approximate balance of positive and negative evidence exists.  
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Thus, when a veteran 
seeks benefits and the evidence is in relative equipoise, the 
veteran prevails.  Wells v. Principi, 18 Vet. App. 33, 36 
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  A 
claim will be denied only if a preponderance of the evidence 
is against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 
519-20 (1996).


III. Analysis

a. Factual Background

In March 1999, the veteran underwent a partial laminotomy and 
diskectomy.

The veteran submitted to a VA general medical examination in 
May 2005.  The examiner noted that the claims file was not 
available for review.  The veteran complained of daily back 
pain "above the belt line" that radiated to the posterior 
thighs of both legs.  He reported aching and stiffness that 
became a sharp pain with movement.  He rated the pain as 
3/10.  The pain was alleviated with Motrin and Flexeril three 
to four days per month.  There had been no incapacitation in 
the previous 12 months.  The veteran denied wearing a back 
brace.  He was able to perform the usual activities of daily 
living, although he reported pain with prolonged bending or 
running.  With respect to his thoracic dextroscoliosis, the 
veteran complained of occasional pain in his shoulder blade, 
usually once per week lasting for one day.  The pain was 
alleviated with stretching, heat, and Neurontin.

Upon physical examination, the veteran's posture and gait 
were normal.  Curvature of the spine, symmetry, and rhythm of 
spinal motion were normal.  Range of motion of the 
thoracolumbar spine revealed forward flexion 0-70/90 degrees 
with pain, extension backwards 0-30/30 degrees without pain.  
Lateral flexion was 0-30/30 degrees bilaterally without pain.  
Lateral rotation was 0-30/30 degrees bilaterally without 
pain.  No additional limitations were noted with repetition 
of movement.  The clinician noted objective evidence of 
painful motion without spasm, weakness, or tenderness.  A 
neurological examination of the lower extremities revealed 
intact motor, sensory, and deep tendon reflexes.  The Lasegue 
sign was negative.  

The clinician diagnosed herniated nucleus pulposus of the 
lumbosacral spine status post surgical repair with residuals, 
and thoracic dextroscoliosis T7-8 with residual myofascial 
syndrome.

In his February 2006 Form 9, the veteran complained about the 
May 2005 VA examination.  He stated:

While I do not yet use a back brace, I did report 
that I have periods of incapacitation during my 
physical exam at the VA.  I told the examiner that 
I experience incapacitating episodes two to three 
days a month.  I told the examiner that I will use 
Motrin or Flexiril to treat the episodes and that I 
"deal with the pain."  Due to the two surgeries I 
underwent during my last 12 months of Active Duty 
and the 30 days of convalescent leave associated 
with each, I did not to go sick call for those 
episodes and managed to perform my duties in an 
office environment.

The veteran submitted to a VA spine examination in June 2006.  
The doctor indicated that he had reviewed the claims file.  
The veteran complained of constant pain across his lower back 
that radiated during flare-ups to the right thigh posteriorly 
and to the left lower extremity posteriorly all the way to 
the big toe.  He rated the pain as 4/10.  He also complained 
of sharp, "off and on" thoracic pain that lasted one day, 
usually caused by driving long distances and using the 
computer.  He rated the pain as 9/10.  The veteran denied 
taking any medication or using a back brace.  He also denied 
numbness, weakness, bladder and blower complaints, or 
erectile dysfunction.  The doctor noted that there was no 
additional limitation of motion or functional impairment 
during flare-ups.  He further noted that "the veteran's 
lower back and thoracic spine conditions have no effect on 
his occupation or usual daily activities."  X-rays revealed 
a normal lumbosacral spine and mild dextroscoliosis of the 
thoracic spine.

Upon physical examination, the veteran had normal range of 
motion of the thoracolumbar spine.  Forward flexion was zero 
to 90 degrees, extension was zero to 30 degrees, lateral 
flexion was 0 to 30 degrees bilaterally, and lateral rotation 
was 0 to 30 degrees bilaterally.  There was no pain on 
motion.  Repetitive flexion did not decrease range of motion 
or spine function.  Aside from the thoracic scoliosis, there 
was no muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour.  Sensory and motor 
examinations were normal.  The left Achilles reflex was 
absent, but the remaining reflexes were normal.  The 
Lasegue's sign was negative bilaterally.  

The doctor diagnosed thoracic dextroscoliosis, strain, and 
postoperative residuals of a herniated nucleus pulposus.

b. Discussion

The Board determines that the evidence weighs against an 
initial or staged rating in excess of 10 percent for the 
veteran's service-connected postoperative residuals herniated 
nucleus pulposus lumbosacral spine with thoracic 
dextroscoliosis T7-8 with residual myofascial syndrome.  
There is no indication of any appreciable limitation of 
motion of the thoracolumbar spine, nor is there clinical 
evidence of muscle spasm or guarding severe enough to result 
in an abnormal gait or abnormal spinal contour.  The evidence 
suggests only that the veteran experiences low back and 
thoracic pain for which he no longer takes pain medicine.  
Even considering the pain reported by the veteran, there is 
no competent medical evidence that the pain causes any 
additional loss of function.  The two examinations noted 
above showed that the degree of limitation of forward flexion 
of the thoracolumbar spine present falls far short of 60 
degrees; thus a rating in excess of 10 percent is not 
warranted on that basis.  The combined range of thoracolumbar 
motion shown on both examinations clearly does not more 
nearly approximate what is required for the next highest 
rating of 20 percent.  See 38 C.F.R. § 4.71a, General Rating 
Formula after Diagnostic Codes 5235-5243.  See also 38 C.F.R. 
§ 4.71a, Plate V. 


While the veteran has back pain, the physician who examined 
him in May 2005 specifically noted that there were no 
additional limitations with repetition of movement.  The June 
2006 VA examiner reported that there was no additional 
limitation of motion or functional impairment during flare-
ups.  The latter examiner added that the veteran's lumbar and 
thoracic spine conditions had no effect on his occupation or 
usual daily activities.  There is no indication that pain or 
flare-ups of pain results in additional limitation of motion 
of the thoracolumbar spine supported by objective findings to 
a degree that would support a rating in excess of 10 percent 
.See 38 C.F.R. § 4.40.  Both clinical examinations revealed 
near full range of motion of the back and an X-ray 
examination of the thoracolumbar spine was normal aside from 
mild dextroscoliosis.  Nor is there any evidence to show that 
weakness, fatigue, incoordination or any other back symptom 
or sign, or flare-ups of such symptoms, results in additional 
limitation of motion to a degree that would support a rating 
of 20 percent.  38 C.F.R. § 4.45.  See also DeLuca, supra.  

Although the veteran claims that he has incapacitating 
episodes of back pain once a month lasting two to three days, 
he has specifically stated that he continues to perform his 
employment duties during these episodes.  The Board notes 
there is no medical evidence of incapacitating episodes of 
IDS, let alone such episodes necessitating bed-rest 
prescribed by a physician.  Aside from an absent ankle reflex 
reported upon the most recent VA examination in June 2006, 
the neurological examinations at that time and in May 2005 
were normal with no sensory or motor deficit or indication of 
neurological impairment, including but not limited to 
radiculopathy and bowel or bladder impairment.  Thus, there 
is no showing that the veteran objectively manifested 
neurological loss of function as a consequence of his 
service-connected back disability to support a separate 
compensable rating.  

Accordingly, a rating in excess of 10 percent is not 
warranted under 38 C.F.R. § 4.71a, DC 5243.  A separate 
rating under Code 5003 is not appropriate as the veteran's 
limitation of motion is compensable under joint-specific 
guidelines.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.



Extraschedular Ratings 

As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 
(1991), the Board has considered the potential application of 
various provisions of Title 38 of the Code of Federal 
Regulations, whether or not the veteran raised them, 
including 
§ 3.321(b)(1), which governs extraschedular ratings.  The 
Board finds that the evidence of record does not present such 
"an exceptional or unusual disability picture as to render 
impractical the application of the regular rating schedule 
standards."  38 C.F.R. § 3.321(b)(1) (2007).  There has been 
no showing by the veteran that his service-connected back 
disability has necessitated frequent hospitalizations or has 
resulted in marked interference with employment.  In the 
absence of such factors, the criteria for submission for 
assignment of an extraschedular rating for his disability 
pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied.  See 
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 
8 Vet. App. 218, 227 (1995).

IV.  Conclusion  

For the reasons stated above, the Board finds that the 
preponderance of the evidence is against a rating in excess 
of 10 percent.  Thus, the benefit-of-the-doubt rule does not 
apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).  Accordingly, the appeal for an initial or 
staged rating in excess of 10 percent rating for post-
operative residuals herniated nucleus pulposus lumbosacral 
spine with thoracic dextroscoliosis T7-8 with residual 
myofascial syndrome must be denied. 


ORDER

Entitlement to an initial or staged rating in excess of 10 
percent for post-operative residuals herniated nucleus 
pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 
with residual myofascial syndrome is denied.



REMAND

In June 2005, the RO granted service connection for left 
shoulder impingement syndrome, status post arthroscopic 
surgery, evaluating it at 10 percent disabling from June 1, 
2005.  In the February 2006 Form 9 that the veteran filed 
with respect to his lower back issues, he stated "I am also 
submitting additional information on my shoulder."  Attached 
to the Form 9 was a private provider medical record 
concerning his left shoulder.  The Board construes this 
correspondence as a timely NOD with the June 2005 RO 
determination.  See 38 C.F.R. § 20.201 (2007).  The RO has 
not yet issued a statement of the case (SOC) with respect to 
this issue.  Regardless of the underlying merits of this 
issue or whether it must be denied as a matter of law, the RO 
must provide the appellant an SOC, and afford him an 
opportunity to perfect an appeal of this issue thereafter by 
filing a timely substantive appeal.  See Manlincon, 12 Vet. 
App. at 240-41.

Accordingly, the case is REMANDED for the following action:

1. The RO should issue a Statement of the 
Case to the veteran and his representative 
addressing the issue of entitlement to an 
increased rating for left shoulder 
impingement syndrome, status post 
arthroscopic surgery.

The appellant also must be advised of the 
time limit in which he may file a 
substantive appeal.  38 C.F.R. 
§ 20.302(b).

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




______________________________________________
R. F. WILLIAMS 
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs