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