Citation Nr: 0811162 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-12 520 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain, prior to June 24, 2003. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain, effective June 24, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran retired in April 1993, after more than 20 years of active, honorable military service. This matter came to the Board of Veterans' Appeals (Board) on appeal from RO rating decisions in December 2003 and February 2004. In February 2004, the RO denied the veteran's claim of entitlement to a rating in excess of 10 percent for tinnitus, as well as his claim for a compensable rating for gout. The veteran disagreed with those decisions and perfected an appeal to the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2003). However, in September 2004, prior to transfer of the case to the Board, the veteran notified the RO that he wished to withdraw from appeal the issue of entitlement to an increased rating for tinnitus. 38 C.F.R. § 20.204 (2004). Therefore, the Board has no jurisdiction over that claim, and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). In March 2005, the RO denied the veteran's claims for VA compensation for low back disability, right leg disability, and right hip disability, under the provisions of 38 U.S.C.A. § 1151. During his June 2005 hearing at the RO, the veteran rendered testimony to the effect that he disagreed with those decisions. Immediately following the hearing, the veteran stated that he no longer wished to pursue the issues of entitlement to VA compensation for low back disability, right leg disability, and right hip disability, under the provisions of 38 U.S.C.A. § 1151. However, he did claim entitlement to service connection or right hip and right leg disability due to his service-connected back disability. In November 2005, the RO informed the veteran of its duty to assist him in the development of his secondary service connection claims and requested information and evidence to substantiate those claims. However, the veteran did not respond to that request. Therefore, the Board has no jurisdiction over those claims and they will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). In November 2006, the RO raised the veteran's rating for gout from noncompensable to 20 percent, effective June 24 2003. Later that month, prior to transfer of the case to the Board, the veteran notified the RO that he was satisfied with that decision. Therefore, he also withdrew that issue from appeal. 38 C.F.R. § 20.204 (2006). Accordingly, the Board has no jurisdiction over that claim, and it will not be considered below. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.101. In November 2006, the RO issued the veteran a Supplemental Statement of the Case which included the issue of an increased rating for lumbosacral strain. The veteran subsequently submitted additional evidence; however, it was not relevant to the increased rating issue. Therefore, it need not be considered with respect to that issue. In a February 2008 statement through his representative, the veteran argued that his service-connected low back disability should be rated as intervertebral disc syndrome, a contention also voiced during a June 2005 hearing at the RO. However, intervertebral disc syndrome and the service-connected lumbosacral strain are two distinct disabilities and are rated separately for purposes of VA adjudication, and the veteran is not in receipt of service connection for the former disorder. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5237 and 5243 (2007). A new claim of service connection for intervertebral disc syndrome is therefore raised and is REFERRED to the RO for appropriate action. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). FINDINGS OF FACT 1. Prior to June 24, 2003, the veteran's lumbosacral strain, manifested primarily by muscular tenderness, was productive of no more than moderate impairment. 2. Since June 24, 2003, the veteran's lumbosacral strain, manifested primarily by muscular tenderness, low back flexion to at least 40 degrees, and a combined range of low back motion of at least 184 degrees, has been productive of no more than moderate impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral strain, prior to June 24, 2003, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5295 (effective prior to September 26, 2003). 2. The criteria for a rating in excess of 20 percent for lumbosacral strain, since June 24, 2003, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (revised effective September 26, 2003, and codified as amended at 38 C.F.R. § 4.71a, Diagnostic Code 5237(2007)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his claims for increased rating for his service-connected lumbosacral strain. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. For an increased-compensation claim, VA must notify the veteran that, to substantiate a claim, the veteran must provide, or ask 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 veteran's employment and daily life. 38 U.S.C.A. § 5103(a); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Under Vazquez-Flores, as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA 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. The foregoing requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also, Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are not prejudicial to the veteran. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121. The veteran's claim for an increased disability rating was received in June 2003. In July 2003, the RO provided notice to the veteran regarding the general information and evidence needed to substantiate increased rating claims, such as medical records from VA as well as private sources; examination reports; results of laboratory tests or X-rays records held by other federal agencies; and/or statements from individuals who are able to describe from their knowledge and observations the manner in which the veteran's back disability had become worse. The RO also specified the information and evidence to be submitted by him, the information and evidence to be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertained to his claims. The veteran's claim for an increased disability rating was in part granted in a February 2004 rating decision, and a copy of the rating and a forwarding letter were mailed to the veteran in March 2004. In relevant part, the rating decision explained to the veteran a recent change in law regarding the evaluation of service connected back disorders and reviewed the evidence of record with regard to the then-assigned rating. Subsequent to receipt of the veteran's notice of disagreement in June 2004, a In March 2006, the RO notified the veteran that once service connection for a particular disability had been established, a disability rating would be assigned in accordance with the criteria set forth in the VA schedule for evaluating disabilities. 38 C.F.R. Part 4. The RO also notified the veteran that an effective date for the award of benefits would be assigned and would be based, generally, on the date of the receipt of the claim for benefits or when the evidence showed a level of disability that supported a certain rating under the rating schedule. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During his March 2007 hearing before the undersigned Veterans Law Judge, the veteran testified as to the impact that the claimed worsening back disability had on his daily life. Although notice of the information and evidence necessary to establish an assigned rating and an effective date for any rating increase was not provided to the veteran at the time he filed his claim for an increased rating, any such error was effectively harmless and did not result in prejudice to the veteran. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error in notifying the veteran of the information and evidence necessary to substantiate a claim may be cured by a new VCAA notification followed by a readjudication of the claim). Not only did the foregoing notice provide such information, the veteran and his representative submitted additional argument with respect to his claim, including his testimony at his March 2007 hearing. Moreover, the veteran submitted extensive evidence from several former employers setting forth the manner in which the veteran's service-connected disabilities had affected his employment. Finally, neither the veteran nor his representative have challenged the assigned ratings based on any lack of understanding of the evidence and information necessary to support those claims. See Mayfield, supra (due process concerns with respect to notice requirements must be pled with specificity). After reviewing the record, the Board finds that VA has met its duty to assist the veteran in the development of information and evidence necessary to support his claim for an increased rating for lumbosacral strain. With respect to that issue, it appears that all relevant evidence identified by the veteran has been obtained and associated with the claims folder. He has not identified any further outstanding evidence, which could be used to support that claim. As such, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the veteran regarding what further evidence he should submit to substantiate his claim. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). The veteran has had ample opportunity to participate in the development of his appeal. Therefore, further action is unnecessary in order to meet VA's statutory duty to assist him in the development of his claim for an increased rating for lumbosacral strain. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (development that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board will proceed to the merits of that issue. Analysis The veteran seeks a rating in excess of 10 percent for his service-connected lumbosacral strain, effective prior to June 24, 2003, and a rating in excess of 20 percent thereafter. During a hearing at the RO in June 2005, he testified that his back disability altered his gait and that he had required physical therapy. He stated that he could not move as quickly as he used to and that his back disability limited the amount he could lift. He also noted that it limited his daily activities, such as his ability to do yard work. Therefore, he maintained that an increased rating was warranted. A review of the record discloses that the veteran's service- connected low back disability is manifested primarily by lumbosacral pain and some limitation of motion. However, those manifestations do not meet or more nearly approximate the criteria for a by a rating in excess of 10 percent prior to June 24, 2003, or for a rating in excess of 20 percent thereafter. Therefore, as that issue, the appeal is denied. Disability evaluations are determined by the application of VA's Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. At the outset of the veteran's claim, his service-connected lumbosacral strain was rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5295. Under that diagnostic code, a 20 percent rating was warranted for lumbosacral strain on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating was warranted for lumbosacral strain manifested by listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, a loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Potentially applicable in rating the veteran's lumbosacral strain was 38 C.F.R. § 4.71a, Diagnostic Code 5292. Under that code, a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, while a 40 percent rating was warranted for severe limitation of motion. During the pendency of the veteran's appeal, the rating schedule was revised with respect to way in which VA rated low back disability. See 68 Fed. Reg. 51454-51456 (August 27, 2003). That change became effective September 26, 2003. Under the revised regulations, the veteran's lumbosacral strain and any attendant limitation of motion is rated in accordance with the following general rating formula. 38 C.F.R. § 4.71, Diagnostic Code 5237. General Rating Formula for Diseases and Injuries of the Spine The noted ratings may be assigned 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. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is accomplished to 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. VAOGCPREC 7-2003. The Board will, therefore, evaluate the veteran's service-connected lumbosacral strain under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000; Green v. Brown, 10 Vet. App. 111, 117 (1997). The Board provided the veteran with the old and new regulatory criteria in the March 2005 Statement of the Case. Since that time, the veteran and his representative have submitted a substantial amount of evidence argument on the veteran's behalf. After considering such evidence and argument, the RO has readjudicated the claim on multiple occasions and has sent him several Supplemental Statements of the Case notifying him of its actions. Therefore, there is no prejudice to the veteran in the Board adjudicating the claim. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration is also be given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10, 4.45. 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). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran 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. Entitlement to a rating in excess of 10 percent for lumbosacral strain, prior to June 24, 2003. Prior to June 24, 2003, the veteran's VA treatment records show that his service-connected lumbosacral strain was manifested primarily by muscular tenderness. However, there was no competent evidence of muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in the standing position. Moreover, there was no competent evidence of any more than moderate limitation of lumbar spine motion. Generally, he did not experience flareups, a lack of normal endurance, weakened movement, incoordination, or functional loss on repeated use. Indeed, consultations with the VA neurology service showed that his strength was 5/5 and that his deep tendon reflexes and sensation were normal. As such, he did not meet or more nearly approximate the schedular criteria for a rating in excess of 10 percent for the period prior to June 24, 2003. In light of the foregoing, the veteran's rating for lumbosacral strain, prior to June 24, 2003, is confirmed and continued. To that extent, the appeal is denied. Entitlement to a rating in excess of 20 percent, effective June 24, 2003. Since June 24, 2003, the veteran's low back disability has been manifested primarily by paravertebral muscle pain. In late 2003 and early 2004, the veteran was treated for back problems after he was involved in a motor vehicle accident and when he fell on the ice. He was found to have minimal degenerative changes in his lumbar spine and a bulging disc at L4-L5. Although he underwent physical therapy, reportedly without success, the record remained generally negative for any competent evidence of muscle spasm, listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. In September 2005, an MRI revealed levoscoliosis. However, the apex was at T12, considerably above the lumbosacral spine, and there was no competent evidence of any relationship to the veteran's service-connected lumbosacral strain. Indeed, he did not generally demonstrate discoloration, warmth, swelling or deformity in his lumbar spine; and the preponderance of the evidence was negative for a lack of normal endurance, weakened movement, incoordination, or functional loss on repeated use of his lumbar spine. Rather, consultations with the VA neurology service continued to show that his strength was 5/5 and that his deep tendon reflexes and sensation were normal. During the appeal, the veteran reportedly walked with a cane; however, during the June 2005 VA examination, that was reportedly due to nonservice-connected right knee impairment rather than his service-connected lumbosacral spine. In this regard, here was no competent evidence of any more than moderate limitation lumbar spine motion. Indeed, there was no evidence of ankylosis, and during VA examinations in November 2003 and June 2004, he was able to flex his lumbar spine to at least 40 degrees. In addition, he demonstrated a combined range of lumbar spine motion of at least 184 degrees. Although the veteran complained of bladder trouble, there is no competent evidence that his complaints were in any way related to his service-connected lumbosacral strain. In any event, since June 24, 2003, the manifestations of the veteran's low back disability do not meet or more nearly approximate the criteria for a higher rating for lumbosacral strain under the old or new regulations. Therefore, the 20 percent rating which became effective June 24, 2003, is confirmed and continued. To that extent, the appeal is also denied. ORDER Entitlement to a rating in excess of 10 percent for lumbosacral strain, prior to June 24, 2003 is denied. Entitlement to a rating in excess of 20 percent for lumbosacral strain, effective June 24, 2003, is denied. ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs