Citation Nr: 0810484 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-30 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for basal cell carcinoma of the face. 2. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from December 1982 to December 2002. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were remanded by the Board in May 2006. As noted in the prior remand, it is noted that the appellant had back surgery in December 2003. He was assigned a temporary total rating for that period. That matter is not at issue. The issue concerned herein concerns the schedular rating assigned at other times. The issue of service connection for basal cell carcinoma of the face is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to September 2003, the veteran's low back disorder was manifested by pain and moderate limitation of motion, without incapacitating episodes having a total duration of at least four weeks. 2. Subsequent to September 2003, forward flexion of the lumbar spine was to 45 degrees, with no demonstration of ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Codes 5292, 5293 (2002). 2. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is 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 or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In a VCAA letter relating to service connection for the back disorder, dated in February 2003, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This is considered sufficient for notification regarding the increased evaluation for the veteran's low back disorder. See VAOPGCPREC 8-2003 (Dec. 22, 2003), 69 Fed. Reg. 25180 (2004) (VA is not required to provide separate 38 U.S.C.A. § 5103(a) notice with regard to "downstream" issues, where the notice was provided in connection with the original claim.); see also Grantham v. Brown, 114 F .3d 1156 (1997). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (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. 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. In June 2006, the veteran was provided with all necessary notifications. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). This matter is from an initial rating. See Fenderson v, West, 12 Vet. App. 119 (1999). Moreover, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. This claim was opened in January 2003. The regulations for the evaluation of disabilities of the spine were amended, effective in September 2003. When regulations are changed during the course of the veteran's appeal, the criteria that are to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Revised regulations do not allow for their retroactive application unless those regulations contain such provisions and may only be applied as of the effective date. VAOPGCPREC 3-2000. Service connection for degenerative disc disease of the lumbar spine was first granted by rating decision in June 2003. At that time a 20 percent rating was awarded on the basis of limitation of motion. For slight limitation of motion of the lumbar spine, a 10 percent rating is warranted. A 20 percent rating is warranted for moderate limitation of motion. A 40 percent rating is warranted for severe limitation of motion. 38 C.F.R. § 4.71a, Code 5292. Disability of the lumbar spine could also be rated under the provisions for lumbosacral strain. Lumbosacral strain with characteristic pain on motion warrants a 10 percent rating. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position, warrants a 20 percent rating. 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 osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent rating. 38 C.F.R. § 4.71a, Code 5295. The veteran could also be rated under the provisions for intervertebral disc syndrome. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months.................. 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months............................................ 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months..................................................... 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months..................................................... 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Code 5293. In September 2003, these changes were incorporated into new diagnostic code 5243, without essential alteration. Private treatment records, dated in January 2003, were received in connection with the veteran's claim. These showed that the veteran had complaints of back pain and muscle spasm, which is considered to be consistent with the criteria for a 20 percent rating under the provisions of 38 C.F.R. § 4.71a, Code 5295. An examination was conducted by VA in May 2003. At that time, examination showed the lumbar spine to be tender to palpation at L4-5. There was no fixed deformity. There was no muscle spasm. Active forward flexion was from 0 to 70 degrees, with complaints of pain in the lower back. Normal range was noted to be to 90 degrees. Passive flexion was to 74 degrees and flexion after fatiguing was to 68 degrees, with increased pain in the lower back. Extension backward was deemed normal, from 0 to 35 degrees, actively, passively and after fatiguing. Right and left flexion was from 0 to 40 degrees, which was also noted to be normal. This was active, passive and after fatiguing. Active, passive and rotation after fatigue was from 0 to 50 degrees, bilaterally. Normal motion was noted to be to 55 degrees. Reflexes were normal as was sensation to light touch and pinprick. VA outpatient treatment records, dated from July 2003 to November 2003 primarily show treatment for symptoms of a psychiatric disorder. It is also shown that the veteran had increasing complaints of low back pain as well as pain radiating down his left leg to the ankle. Exacerbations of the back disorder are demonstrated in February 2003 and following a lumbar MRI study in July 2003. In October 2003, it was reported that he had flare-ups every two to three weeks, with aggravation of this pain. He stated that he had not been able to work for the last two months. He denied any bowel or bladder dysfunction or weakness, but stated that coughing and sneezing made it wore. Examination showed straight leg raising test to be positive at 35 degrees on the left. Sensation was within normal limits. Motor strength was 5/5 and reflexes were 1+, bilaterally. Toes were down- going. Hoffmann and Babinski sign were negative. Surgery was recommended and accomplished in December 2003. By rating decision dated in March 2004, the veteran was assigned a temporary total rating on the basis of the December 2003 surgery. This 100 percent award was continued until February 2004. Also at that time, the veteran was assigned a 10 percent evaluation for radiculopathy of the left leg, a residual of the lumbar degenerative disc disease, effective from July 2003. This 10 percent award was continued until the date of the veteran's December low back surgery. The criteria for a rating in excess of the 20 percent evaluation that was assigned at the time service connection was awarded in June 2003, require that motion be severely limited, severe lumbosacral strain must be demonstrated, or the veteran would have to have incapacitating episodes of at least 4 weeks duration. None of these criteria have been demonstrated in the evidence of record. The veteran's range of motion is near normal in all directions with the exception of forward flexion where he lacks only 20 degrees from normal range. This is not productive of severe limitation of motion. He has not demonstrated listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in standing position, or loss of lateral motion. While there is evidence of incapacitating episodes on several occasions reported from February 2003 until October 2003, these are not shown to be of such duration that that a rating in excess of 20 percent is warranted under these criteria. Specifically, there is no indication that the veteran's incapacitating episodes were of the requisite duration of four weeks over a 12 month period. As such, there is no basis to increase the veteran's evaluation for his low back disease beyond the 20 percent rating under the criteria in effect prior to September 2003. The schedule for rating disabilities of the spine was revised effective September 26, 2003. The new regulations have been codified and may be found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2004). The General Rating Formula for Diseases and Injuries of the Spine provides as follows: 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 Unfavorable ankylosis of the entire spine.........................................100 Unfavorable ankylosis of the entire thoracolumbar spine .....................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.................................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine....................................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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..............................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height......................................................10 Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. 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. 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 cervical spine is 340 degrees and 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. Id. Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Id. Note 4 provides that each range of motion measurement should be rounded to the nearest five degrees. Id. Note 5 provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note 6 provides that disability of the thoracolumbar and cervical spine segments will be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. An examination was conducted by VA in June 2007. At that time, the veteran's records of back pain and surgery were reviewed. The veteran now complained of chronic low back discomfort, as an aching in the morning and after sitting in a car for more than one and a half hours. This tended to get better as he moved around during the day. He took Aleve daily, which he states gave him about 20 percent relief. About once per week his pain increased to a level where he took a hydrocodone tablet, which game him 50 to 70 percent relief of the low back pain. He said that bending in some directions put a strain on his back that precipitated the attacks. He also had flare-ups where his left leg got numbness, tingling, and a sharp pain going down the left leg that lasted several seconds. He reported that he had had no incapacitating episodes since his surgery in December 2003, he was able to go to work regularly, although his job was mostly sedentary. Functionally, he was able to do all activities of daily living, but had difficulty bending forward and was slow putting on his shoes and socks. His recreation was greatly impaired. Physical examination of the lumbar spine showed flattening of the spine, with loss of normal lumbar lordosis. He had slight stiffness to his walk because of guarding of the low back. Range of motion showed forward flexion to 45 degrees without pain. At that point, he began to develop pain. He could go up to 70 degrees, when the pain became extreme. Extension was from 0 to 30 degrees with pain at 15 degrees. Left lateral flexion was to 15 degrees with pain at that point. Right lateral flexion was to 30 degrees, with no pain. Left lateral rotation was from 0 to 20 degrees, with pain at that point and right lateral rotation was from 0 to 30 degrees, with no pain. Fatigue caused no change in the range of motion. There was no tenderness to palpation and no paraspinal muscle spasm. Sensory examination was intact, and motor examination was 5/5 bilaterally. Reflexes were 2+ and equal throughout. There was no abnormal loss of bowel sensation. Straight leg raising was positive bilaterally, with referral of pain to the low back. Strength of the great toe was 5/5. An earlier MRI study showed L4-5 postoperative changes primarily on the left, degenerative joint disease of L4-5 and degenerative disc disease of L3-4, L4-5, and L5-S1. The diagnosis was degenerative disc disease and degenerative joint disease of the lumbar spine. The examiner stated that the veteran's back disorder had a moderate effect on his activities around the house and more severe effect on his recreational activity due to his inability to lift or bend without pain. He was able to maintain his current employment because it was sedentary and did not require lifting or bending. For a rating in excess of 20 percent of the lumbosacral spine, the evidence must demonstrate forward flexion to be 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc disease of four weeks duration over the past 12 months. The veteran is able to forward flex to 45 degree and there is no demonstration of ankylosis. On examination in June 2007, the veteran indicated that he had not had any exacerbating episodes since his surgery in December 2003. Under these circumstances, the criteria for a rating in excess of 20 percent are not shown and the claim must be denied. ORDER A rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. REMAND At the time the Board remanded the issue of service connection for basal cell carcinoma so that medical records dated in February 2002 could be obtained from Columbia Lewis- Gale Medical Center. In the remand, the Board noted that 1997 records concerning the veteran's back disorder had been received and should not be requested a second time. It was further noted that if the records were not available this should be documented in the claims folder. The Board notes that the only medical records received following the request from the AMC were the 1997 treatment records that were already in the claims file and that there is no affirmative indication that the February 2002 records are not available. A remand by the Board "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, another attempt to obtain the records should be undertaken. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the veteran and insure the medical care provider from which he received treatment in February 2002 for the basal cell carcinoma of the face. After obtaining any necessary consent, attempts to obtain copies of these records should be made. If the records are not available it should be affirmatively noted in the claims file. 2. Thereafter, the RO/AMC should readjudicate this issue. If the determination remains unfavorable to the veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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. 2006). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs