Citation Nr: 0810941 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-00 349 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for the service-connected herniated nucleus pulposus of the lumbar region with residuals from surgery. 2. Entitlement to an initial compensable evaluation for the service-connected scar of the lumbosacral region associated with the herniated nucleus pulposus of the lumbar region. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from March 1986 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision issued by the RO. The issue of an increased evaluation for the service- connected lumbar spine disability is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected scar of the lumbosacral region is shown to be nontender and asymptomatic; it is shown to be well healed without any document functional impairment. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for the service-connected scar of the lumbosacral region have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.118, including Diagnostic Codes 7801-7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. Regulations implementing the VCAA provisions have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist him with the development of facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the RO has obtained records of treatment reported by the veteran and has afforded him a comprehensive VA examination addressing his claimed disorder. There is no indication from the record of additional medical treatment for which the RO has not obtained, or made sufficient efforts to obtain, corresponding records. The Board is also satisfied that the RO met VA's duty to notify the veteran of the evidence necessary to substantiate his claim in a June 2003 letter. By this letter, the RO also notified the veteran of exactly which portion of that evidence was to be provided by him and which portion VA would attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his or her possession that pertains to a claim. In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. Here, the noted VCAA letter was issued subsequent to the appealed February 2003 rating decision. However, the RO readjudicated the appeal in a December 2004 Statement of the Case (SOC). As this case concerns the propriety of an initial evaluation, rather than a claimed increase in existing evaluation, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. Id., slip. op. at 5. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, the absence of such notification by VCAA letter is not prejudicial in this case. The veteran was fully notified that he was awarded a disability evaluation and an effective date for that evaluation in the appealed February 2003 rating decision, in which service connection for his scars was granted. Id. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The RO granted service connection for the scar of the lumbosacral region and assigned a noncompensable evaluation effective on November 4, 2002. During a January 2003 VA examination, the examiner noted a two-inch, healed post operative scar. During an October 2003 VA examination, the examiner noted that the record indicated that the veteran had had pain in his scar. However, the veteran denied having pain in his scar, and the examiner identified the earlier statement as being a misdiagnosis. On examination, the scar was noted to be 4 1/2 inches long, centered on the midportion of the lumbar area. It was nontender and well healed. In this case, the RO has evaluated the service-connected scar of the lumbosacral region under the provisions of 38 C.F.R. § 4.118, including Diagnostic Code 7805. Under Diagnostic Code 7805, scars are to be evaluated based on limitation of function of the affected part. As there is no indication whatsoever that the veteran's scar causes any limitation of function to his lumbar spine, a compensable rating under this diagnostic code is not warranted. As the scar is not shown to be unstable, painful of examination, or cover an area of 144 square inches (929 square cm.) or greater, a compensable rating is not warranted under any other diagnostic provisions contemplating scars. See 38 C.F.R. § 4.118, including Diagnostic Codes 7802-7804 (2007). Thus, the evidence of record does not support the claim for a compensable rating for the service-connected scar of the lumbosacral region. ORDER An initial compensable evaluation for the service-connected scar of the lumbosacral region is denied. REMAND The veteran's lumbar spine disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293, the diagnostic code for evaluating intervertebral disc syndrome of the spine (2002). In February 2008, the veteran's representative essentially argued that the previous examinations were inadequate for rating purposes because they failed to clearly address the criteria upon which it based its rating decision. In this regard, the Board notes VA treatment records from October to November 2002 document a history of complaints of and treatment for radiating pain into the lower extremity. These records also document complaints of post voiding dribbling. In various lay statements, including his Notice of Disagreement (NOD) and Substantive Appeal, the veteran contends that his back condition had increased in severity since his second surgery in November 2002. He had decreased range of motion in his back. The veteran reported that he had pain which adversely affected his normal activities of daily living. His back disability prevented him from carrying a full laundry basket downstairs, lifting luggage, moving light furniture, carrying light boxes, going for long walks, driving in the car for prolonged periods of time, running, or jogging. The veteran also reported that his service-connected back disability affected his employability in that his back disability prevented him from obtaining aircraft maintenance positions. VA regulations provide that where "the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2005); see 38 C.F.R. § 19.9 (2005). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required by the courts "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Thus, the Board finds that a more contemporaneous VA examination is necessary to adequately determine the current level of severity of the lumbar spine disability. Accordingly, this remaining matter on appeal is REMANDED to the RO for the following action: 1. A letter should be sent to the veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005), the need for additional evidence regarding his claim. The letter must inform the veteran about the information and evidence that is necessary to substantiate the claim, notify him of the type of evidence that VA will seek to provide, inform him of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession. The veteran should be notified that to substantiate his increased evaluation claim: (1) he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities and the effect that worsening has on his employment and daily life; (2) if the diagnostic code under which the veteran is rated contains criteria necessary for a higher disability rating that would not be satisfied by his demonstrating a noticeable worsening or increase in severity of the disabilities and the effect of that worsening has on his employment and daily life (such as a specific measurement or test result), the veteran must be provided at least general notice of that requirement; (3) he must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the he may submit (or ask VA to obtain) that are relevant to establishing increased compensation. 2. The RO should take appropriate steps to contact the veteran in order to have him provide information referable to all additional treatment received for the service-connected lumbar spine disability since October 2003. Based on the response, the RO should undertake all indicated action to obtain copies of all clinical records from any identified treatment source. The veteran should also be informed that he can submit evidence to support his claim. 3. The RO should arrange for the veteran to undergo a VA examination to ascertain the current severity of the service- connected low back disability. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should conduct range of motion testing of the low back (expressed in degrees, with standard ranges provided for comparison purposes). The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any ankylosis of the spine, and if so, whether such is favorable or unfavorable, and the extent of such ankylosis. The examiner should also comment on any associated neurological abnormalities. Considering all examination findings, the physician should then offer an opinion as to whether the veteran has intervertebral disc syndrome (IVDS) that represents a progression of, or is otherwise associated with, the service-connected disability. If not, the examiner should indicate whether it is possible to separate IVDS symptoms from those of the veteran's service-connected disability. If so, or if it is not possible to separate IVDS symptoms from service- connected disability, the examiner should render findings as to the existence and frequency of any of the veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), specifically, whether over the last 12- month period, the veteran's incapacitating episodes had a total duration of (a) at least two weeks but less than four weeks; (b) at least four weeks but less than six weeks; or (c) at least six weeks. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 4. After completion of the above development, the veteran's claim of an evaluation in excess of 20 percent for the service-connected lumbar spine disability should be readjudicated in light of all the evidence of record. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs