Citation Nr: 0810153	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  04-38 000A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an increased evaluation for a thoracic strain 
with degenerative changes, currently evaluated as 10 percent 
disabling.  



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

Robert L. Grant, Associate Counsel




INTRODUCTION

The veteran had active service from February 1989 to March 
1990.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a rating decision of the VA Regional 
Office (RO) in Houston, Texas, which denied entitlement to 
the benefit sought.  


FINDING OF FACT

The veteran's thoracic strain disability does not manifest 
limitation of forward flexion of the thoracolumbar spine 
greater than 30 degrees, but not greater than 60 degrees; a 
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.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for a 
thoracic strain with degenerative changes have not been met.  
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5237 
(2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before addressing the merits of the veteran's claim on 
appeal, the Board is required to ensure that the VA's "duty 
to notify" and "duty to assist" obligations have been 
satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 
C.F.R. § 3.159 (2007).  The notification obligation in this 
case was accomplished by way of a letter from the RO to the 
veteran dated in January 2006.  The RO provided the requisite 
notification regarding the disability rating or the effective 
date that could be assigned in May 2006.  See Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).

The Board acknowledges a recent decision from the United 
States Court of Appeals for Veterans Claims (Court) that 
provided additional guidance of the content of the notice 
that is required to be provided under 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) in claims involving increased 
compensation benefits.  Vazquez-Flores v. Peake, No. 0-355 
(U.S. Vet. App. Jan. 30, 2008).  In that decision, the Court 
stated that for an increased compensation claim, 38 U.S.C.A. 
§ 5103(a) requires, at a minimum, that the VA notify the 
claimant that to substantiate a claim the claimant must 
provide, or ask the VA to obtain, medical or lay 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.  Further, 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 that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the VA must provide at lease 
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, No. 05-355, Slip op. at 5-6.  

While the veteran was clearly not provided this more detailed 
notice, the Board finds that the veteran is not prejudiced by 
this omission in the adjudication of his increased rating 
claim.  In this regard, the veteran is represented by a State 
Veterans' Service Organization recognized by the VA, and the 
Board presumes that the veteran's representative has a 
comprehensive knowledge of VA laws and regulations, including 
those contained in Part 4, the Schedule for Rating 
Disabilities, contained in Title 38 of the Code of Federal 
Regulations.  In addition, the veteran and his representative 
were provided copies of the Statement of the Case, which 
contained a list of all evidence considered, a summary of 
adjudicative actions, all pertinent laws and regulations, 
including the criteria for evaluation of the veteran's 
disability, and an explanation for the decision reached.  In 
the Board's opinion all of the above demonstrates actual 
knowledge on the part of the veteran and his representative 
of the information to be included in the more detailed notice 
contemplated by the Court.  As such, the Board finds that the 
veteran is not prejudiced based on this demonstrated actual 
knowledge.  

The RO also provided assistance to the veteran as required 
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as 
indicated under the facts and circumstances in this case.  
The veteran and his representative have been kept informed of 
the RO's actions in this case by way of the Statement of the 
Case, and been informed of the evidence considered, the 
pertinent laws and regulations and a rationale for the 
decision reached in denying the claims.  The veteran and his 
representative have not made the RO or the Board aware of any 
additional evidence that needs to be obtained in order to 
fairly decide this appeal, and have not argued that any error 
or deficiency in the accomplishment of the duty to notify and 
duty to assist has prejudiced him in the adjudication of his 
appeal.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  
Therefore, the Board finds that the duty to notify and duty 
to assist have been satisfied and will proceed to the merits 
of the veteran's appeal.

The veteran essentially contends that the current evaluation 
assigned for his thoracic strain disability does not 
accurately reflect the severity of that disability.  
Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
the symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities.  The percentage ratings 
represent, as far as can practicably be determined, the 
average impairment in earning capacity resulting from such 
diseases and injuries and the residual conditions in civilian 
life.  Generally, the degree of disability specified are 
considered adequate to compensate for considerable loss of 
working time from exacerbations or illnesses proportionate to 
the severity to the several grades of disability.  38 
U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate Diagnostic Codes 
identify the various disabilities and the criteria for 
specific ratings.

If two disability evaluations are potentially applicable, the 
higher evaluation will be assigned if the disability picture 
more nearly approximates the criteria required for that 
evaluation.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7. After careful consideration of the evidence, 
any reasonable doubt remaining will be resolved in favor of 
the veteran.  38 C.F.R. § 4.3.  While the veteran's entire 
history is reviewed when making a disability determination, 
38 C.F.R. § 4.1, where service connection has already been 
established and an increase in the disability rating is at 
issue, it is a present level of disability that is of primary 
concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

In addition, in evaluating disabilities of the 
musculoskeletal system, it is necessary to consider, along 
with the schedular criteria, functional loss due to flare-ups 
of pain, fatigability, incoordination, pain on movement and 
weakness.  38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. 
App. 202, 206-7 (1995).

The Board is also required to consider whether the veteran 
may be entitled to a staged rating.  Therefore, in this 
claim, the Board has assessed the level of disability from 
the date of initial application for service connection to the 
present, determining whether the level of impairment warrants 
different disability ratings at different times over the life 
of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999); 
Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 
2007).  

An orthopedic VA examination was conducted in September 2002.  
At that time the veteran reported upper back pain that 
occurred after using crutches and a fall onto his left 
shoulder.  Forward flexion as found to be 110 degrees, 
extension was 25 degrees, lateral bending was 20 degrees, and 
lateral rotation was 45 degrees.  

The Board notes that in June 2003 the RO issued a rating 
decision which found that the veteran was entitled to service 
connection for an upper back condition with an evaluation of 
10 percent effective January 25, 2001.  The veteran filed a 
Notice of Disagreement and a Statement of the Case was issued 
in September of 2004.  In October of 2004 the RO received an 
unsigned and undated statement from the claimant asserting 
that his claim had been under evaluated.  That document was 
returned to the veteran for his signature, with a notice from 
the RO advising that the veteran had until October 2005 to 
return the statement.  A signed, dated, statement was 
received by the RO in July 2005.  The RO issued a letter in 
August 2005 regarding the veteran's appeal rights.  However, 
in May 2006 the RO issued an additional letter advising that 
the August 2005 letter was incorrect and that the veteran's 
appeal rights had expired.  

In February 2006 the veteran submitted a statement in which 
he asserted that his back and neck conditions had worsened.  
Attached to that statement were medical records from August 
2003 in which the veteran reported to the hospital with 
chronic mid to upper back pain.  

An additional VA examination was conducted in April 2006.  At 
that time the veteran complained of daily pain at T2-T6 which 
results in weakness and stiffness.  On examination the 
veteran was said to have a non-antalgic gait.  Forward 
flexion was found to be 85 degrees and extension was 25 
degrees.  Right lateral flexion was measured at 35 degrees 
and left lateral flexion was measured at 30 degrees.  
Rotation was found to be 30 degrees on the right and left.  
The medical examiner offered the opinion that he found no 
objective clinical evidence that function was additionally 
limited by pain, fatigue, weakness, or incoordination.  

Under the General Rating Formula as applicable to the 
veteran's back disability, a 20 percent rating is warranted 
when 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 there is muscle spasm or 
guarding severe enough to result in an abnormal gait or 
abnormal spinal contour such as scoliosis, reversed lordosis, 
or abnormal kyphosis.  

Note (2) provides that, for VA compensation purposes, normal 
forward flexion of the cervical spine is zero to 45 degrees, 
extension is zero to 45 degrees, left and right lateral 
flexion are zero to 45 degrees, and left and right lateral 
rotation are zero to 80 degrees.  The normal combined range 
of motion of the cervical spine is 340 degrees.  See also 
Plate V, 38 C.F.R. § 4.71a. 

A review of the medical evidence available in the record 
indicates that the veteran's most recent examination 
demonstrated forward flexion of the cervical spine of 85 
degrees and extension of 25 degrees.  Right lateral flexion 
was measured at 35 degrees and left lateral flexion was 
measured at 30 degrees.  Rotation was found to be 30 degrees 
on the right and left.  When added the veteran's total range 
of motion is calculated at 235 degrees.  Additionally, the 
veteran did not demonstrate an abnormal gait or abnormal 
spinal contour such as scoliosis, reversed lordosis, or 
abnormal kyphosis.  As such, the veteran does not meet the 
criteria for a 20 percent, or higher, evaluation under 38 
C.F.R. § 4.71a and the Board concludes that an increased 
evaluation is not warranted.  

The Board has also considered whether the veteran is entitled 
to an additional evaluation under DeLuca v. Brown, 8 Vet. 
App. 202, 206-7 (1995).  The VA examiner who conducted the 
veteran's April 2006 examination clearly offered the opinion 
that he found no objective clinical evidence that function 
was additionally limited by pain, fatigue, weakness, or 
incoordination.  As such, an additional evaluation is not 
warranted.


ORDER

An evaluation in excess of 10 percent for a thoracic strain 
with degenerative changes is denied.  



____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs