Citation Nr: 0810497 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-24 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an initial compensable rating for service- connected mechanical low back pain, prior to August 3, 2007. 2. Entitlement to an initial rating in excess of 20 percent for service-connected mechanical low back pain, from August 3, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark Vichich, Associate Counsel INTRODUCTION The veteran served on active duty from October 1983 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) following a Board remand of February 2005. This matter was originally on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The veteran testified before the undersigned Acting Veteran's Law Judge at a travel board hearing in May 2004; a transcript is of record. FINDINGS OF FACT 1. The competent medical evidence showed that prior to March 10, 2006, the veteran had full range of motion of the thoracolumbar spine with 95 degrees of flexion, 35 degrees of extension, 40 degrees of lateral flexion bilaterally, and 35 degrees of rotation bilaterally without pain. 2. The competent medical evidence failed to show that prior to March 10, 2006, the veteran's service-connected mechanical low back pain was characterized by tenderness or spasm on examination. 3. Beginning March 10, 2006, the competent medical evidence showed that forward flexion of the thoracolumbar spine was limited to 20 degrees. CONCLUSIONS OF LAW 1. Prior to March 10, 2006, the criteria for a compensable rating for service-connected mechanical low back pain have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59 (2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5295 (2003), 5237 (2007). 2. Beginning March 10, 2006, the criteria for a disability rating of 40 percent for service-connected mechanical low back pain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59 (2007); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 and Board Remand The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). For an increased-compensation claim, VCAA requires, at a minimum, that VA notify the claimant that the evidence demonstrates a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. Vazquez-Flores v. Peake, No. 05- 0355, (U.S. Vet. App. January 30, 2008). The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. The Board finds that VA has no further duty to notify prior to Board adjudication. Prior to initial adjudication of the veteran's claim, in correspondence dated in December 2001, the RO advised the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. The RO also essentially requested that the veteran send any evidence in his possession that pertained to the claim, namely by requesting any additional evidence concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. The veteran did not respond to this notice. The December 2001 letter did not include the criteria necessary to establish entitlement to an increased disability rating and did not include information pertaining to the establishment of an effective date. Although the veteran has not been provided with fully compliant notice, the Board finds that any deficiencies have resulted in no prejudice and that a decision on the merits is appropriate at this time. The veteran has submitted numerous statements describing the severity of his disability and its affect on his employment and daily life. For example, in a statement submitted with his substantive appeal in August 2003, the veteran explained that he should be awarded a 20 percent rating for his low back pain, which he described as constant and moderate. The veteran also reported having spasms that debilitated his "walking and everyday activities." The veteran described the pain associated with this disability and alleged difficulty sitting, standing, walking, and lying down. Thus, the veteran demonstrated actual knowledge that he needed to show worsening or increase in severity of the disability and the effect that worsening had on his employment and daily life. Such knowledge cures any timing or content defects of the notice as it pertains to the veteran's increased rating claim. Regarding the inadequate notification to the veteran that an effective date for the award of benefits will be assigned, the Board finds that the veteran has not been prejudiced by this either. When a claim for service connection is granted, and a disability rating and effective date assigned, the claim has been substantiated and the claimant has been provided meaningful opportunity to participate effectively in the processing of his or her claim. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In such a case, prejudice is not presumed and the veteran must demonstrate how the notification error affected the essential fairness of the adjudication. Id. The veteran has not alleged, and the record did not reveal, prejudice from the absence of notice on the effective date element. The Board will proceed with appellate review notwithstanding the notice deficiency. Finally, the Board also finds that the RO has satisfied VA's duty to assist. The RO has obtained the veteran's service medical records and provided him with VA examinations in December 2002, March 2006, and August 2007. The August 2007 examination report is in full compliance with the Board's February 2005 remand. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Accordingly, the Board will proceed with appellate review. II. Legal Criteria and Analysis Presently, the veteran's service-connected mechanical low back pain is rated noncompensable prior to August 3, 2007, and as 20 percent disabling effective August 3, 2007. The veteran is contesting these rating assignments. As noted above, the veteran described the severity of his back disability in a statement submitted with his substantive appeal in August 2003. In that statement, the veteran reported having severe spasms that debilitated his ability to walk and engage in everyday activities. The veteran alleged having to go to the emergency room and to see chiropractors on numerous occasions because of the severe pain, which lasted two weeks or more. The veteran alleged difficulty sitting, standing, walking, and lying down when such flare- ups occurred. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). When the initial evaluation is at issue, the Board must assess the entire period since the original claim was filed to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods since the date the original claim was filed. See Fenderson v. West, 12 Vet. App. 119 (1999). Individual disabilities are assigned separate diagnostic codes. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2007). 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. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45 (2007). The veteran filed the service connection claim in November 2001. During the course of this appeal, the regulations controlling low back disabilities were amended twice. First, the rating criteria for evaluating intervertebral disc syndrome were changed, effective September 23, 2002. Amendment to Part 4, Schedule for Rating Disabilities, 67 Fed. Reg. 54,345-54,349 (August 22, 2002) (38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). Second, the rating criteria for all other spine disabilities were changed, effective September 26, 2003. Amendment to Part 4, Schedule for Rating Disabilities, 68 Fed. Reg. 51,454-51,458 (August 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243 (2004-2005)). The amended rating criteria for intervertebral disc syndrome were subsumed in the aforementioned amended rating schedule for all other spine disabilities. When the regulations concerning entitlement to an increased rating are changed during the course of an appeal, the veteran is entitled to resolution of his or her claim under the criteria that are more to his or her advantage. VAOPGCPREC 3-00. The old criteria may be applied for the full period of the appeal. The new rating criteria, however, may only be applied to the period of time after their effective date. Id. The supplemental statement of the case, dated in December 2007, showed that the RO considered the veteran's low back disability under the old and the new rating criteria. Prior to March 10, 2006 Upon reviewing the medical evidence, the Board finds that prior to March 10, 2006, the veteran's service-connected spine disability failed to meet the criteria for a compensable rating under either the old or the new criteria, but that as of March 10, 2006, the veteran's service- connected spine disability met the criteria for a 40 percent rating under the new criteria. In evaluating the veteran's service-connected mechanical low back pain, the Board first considers the severity of the disability prior to March 10, 2006-the day the veteran underwent a VA fee basis examination-under both the old and the new criteria. The evidence relevant to the period prior to March 10, 2006 included a VA examination report, dated in December 2002. In the December 2002 VA examination report, Dr. T.W. noted that the veteran had full range of motion with 95 degrees of flexion, 35 degrees of extension, 40 degrees of lateral flexion bilaterally, and 35 degrees of rotation bilaterally without pain. The veteran's combined range of motion of the thoracolumbar spine for VA rating purposes was 240 degrees. Dr. T.W. found no tenderness or spasms on examination. Dr. T.W. diagnosed chronic intermittent lumbosacral sprain and described it as "minimally symptomatic." The RO granted service connection in the June 2002 rating decision and assigned an initial noncompensable rating under the old Diagnostic Code 5295. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Under that Diagnostic Code, a 10 percent rating requires medical evidence of a lumbosacral strain with characteristic pain on motion. 38 C.F.R. § 4.72, Diagnostic Code 5295 (2003). Under the old criteria, a rating of 10 percent may also be assigned for slight limitation of motion of the lumbar spine. 38 C.F.R. § 4.72, Diagnostic Code 5292 (2003). The findings reported in the December 2002 VA examination report preclude compensable ratings under either Diagnostic Code 5295 or 5292 of the old criteria because neither characteristic pain on motion nor slight limitation of motion were shown. Instead, the VA examiner reported range of motion to be normal and without pain. The Board has also considered Diagnostic Codes 5285, 5286, and 5289 for Residuals of vertebra fractures, complete boney fixation (ankylosis), and favorable and unfavorable ankylosis respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, and 5289 (2003). None of these diagnostic codes applies here, however. The medical evidence does not show that at any time prior to March 10, 2006, the veteran's spine was ankylosed or that his mechanical low back pain was characterized by residuals of a fracture. The Board has considered the application of the criteria for intervertebral disc syndrome as in effect prior to September 2002, for the period prior to March 10, 2006, but finds that those criteria do not apply. The competent medical evidence is negative for a diagnosis of this disease and the veteran is not service-connected for it. The Board now considers the veteran's service-connected low back disability under the amended criteria for the period prior to March 10, 2006. Under the new rating criteria, all disabilities of the thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the veteran is service-connected for intervertebral disc syndrome. In that case, the disability is evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, but not greater than 235 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. 38 C.F.R. § 4.71a, General Rating Formula (2007). Under the amended schedule, any associated neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2007). As noted, the veteran is not service-connected for intervertebral disc syndrome. Consequently, the Board will consider only the General Rating Formula and not the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula does not provide for a compensable rating prior to March 10, 2006. For the period prior to March 10, 2006, the veteran had full range of motion with 95 degrees of forward flexion and a combined range of motion of 240 degrees. These values do not satisfy the criteria for a 10 percent rating requiring motion to be limited to no more than 85 degrees of flexion or combined range of motion to less than 235 degrees. Id. Moreover, the evidence was negative for spasm or tenderness. Id. The Board has also considered a separate rating for neurologic abnormalities for the period prior to March 10, 2006, but finds that no such rating is warranted here. The VA examination report of December 2002 was negative for any findings of neurological abnormalities. Instead, all neurologic tests were reported to be normal and without evidence of radiculopathy. There is no basis for a separate rating for neurologic abnormalities. 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2007). Beginning March 10, 2006 The veteran underwent a fee basis VA examination on March 10, 2006. A review of that examination report revealed that the veteran met the amended criteria for a 40 percent rating at that time. Under the new criteria, a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. In the March 2006 VA examination report, C.B., Physician Assistant, Certified, stated that the veteran had "limited painful" range of motion of the thoracolumbar spine. C.B. reported the following ranges of motion of the thoracolumbar spine: forward flexion zero to 20 degrees, extension zero to 30 degrees, left lateral flexion zero to 25 degrees, right lateral flexion zero to 15 degrees, left lateral rotation zero to 25 degrees, and right lateral rotation zero to 10 degrees. The veteran's combined range of motion for VA rating purposes was 135 degrees. C.B. also reported that the veteran was unable to perform repetitive motion testing because of pain and stiffness. C.B. also found tenderness in the paraspinal muscle groups and bilateral sacroiliac joints, and "extreme guarding" on examination. C.B. provided no explanation or further discussion of these findings. C.B.'s report, while lacking extensive analysis or explanation, is facially valid. C.B. indicated that he had reviewed the veteran's claims file. C.B. also included many of the veteran's subjective complaints in his report, indicating that he conducted a thorough interview as part of the examination. There is nothing in the report (or omitted from the report for that matter) to indicate that it is lacking credibility. Thus, the Board finds that it is entitled to no less weight than any other evidence in the claims file. As this report demonstrates flexion of the thoracolumbar spine to be limited to less than 30 degrees (i.e. to 20 degrees), the criteria for a 40 percent rating are met, effective March 10, 2006. C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). In granting a 40 percent rating beginning March 10, 2006, the Board finds that the disability does not meet the criteria for the higher 50 percent rating under either the old or new criteria. The competent medical evidence for the period beginning March 10, 2006 included the VA examination report of that date and another VA examination report, dated in August 2007, in addition to all evidence previously associated with the claims file. Under the old criteria, only Diagnostic Codes 5285, 5286, 5289, and 5293 provide for ratings in excess of 40 percent for disabilities of the lumbar spine. Diagnostic Codes 5285, 5286, and 5289 apply for residuals of vertebra fractures, complete boney fixation (ankylosis), and favorable and unfavorable ankylosis respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, and 5289 (2002). None of these diagnostic codes applies here because the medical evidence does not show that at any time during the course of this appeal the veteran's spine was ankylosed or that his mechanical low back pain was characterized by residuals of a fracture. Diagnostic Code 5293 applies to intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). As explained above, a rating for this disability is inapplicable here. Under the new criteria, a 50 percent rating requires evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. The evidence, however, does not show that the thoracolumbar spine is ankylosed in an unfavorable position. To the contrary, the medical evidence is completely negative for ankylosis of any part of the spine. III. Essentials of Evaluative Rating Lastly, the Board notes that there is no evidence of record that the veteran's service-connected spine disability causes marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent period of hospitalization, such that application of the regular schedular standards is rendered impracticable. Moreover, the veteran has not raised such an issue. The Board emphasizes that the percentage ratings assigned by the VA Schedule for Rating Disabilities represent the average impairment in earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1 (2007). In the instant case, to the extent that the veteran's service-connected spine disability interferes with his employability, the currently assigned rating adequately contemplates such interference, and there is no evidentiary basis in the record for a higher rating on an extraschedular basis. Hence, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007) for assignment of an extraschedular evaluation. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER 1. An initial compensable rating for service-connected mechanical low back pain, prior to March 10, 2006, is denied. 2. An initial rating of 40 percent for service-connected mechanical low back pain, from March 10, 2006, is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs