Citation Nr: 0811947 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 02-21 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for residuals of a lumbar spine injury, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from January 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded to the RO in June 2004 and December 2006. In October 2005, the Board upheld the RO's denial of the veteran's claim. The veteran filed a timely appeal to the U.S. Court of Appeals for Veterans Claims (Court). In May 2006, the General Counsel for the Department of Veterans Affairs (General Counsel) and the veteran's representative filed a motion to vacate the Board's decision. The Court granted the motion that month, vacating and remanding the case to the Board. In December 2006, the Board remanded this case for the development requested by the Court. In an August 2007 decision, the RO increased the evaluation for the back disorder to 20 percent. The veteran has not appealed the August 2007 rating action, therefore, the effective date of the award of the 20 percent is not before the VA at this time. In his November 2002 VA Form 9, Appeal to Board of Veterans' Appeals, the veteran claims that he has bilateral leg impairment. It appears that the RO is in the process of addressing this and other issues (it appears that while the issue was being addressed by the Board and the Appeals Management Center in Washington, D.C,, the RO in Florida has been unable to address these new claims). At this time, these issues are not before the Board. The RO should proceed regarding the adjudication of these new claims. FINDING OF FACT The residuals of the veteran's lumbar spine injury have not been manifested by muscle spasm on extreme forward bending or forward flexion of the back to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW A rating in excess of 20 percent for residuals of lumbar spine injury is not warranted. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5295 and 5285 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection has been established for residuals of a lumbar spine injury, with old healed compression fracture at L4 and early minor degenerative changes, which is now rated as 10 percent disabling. In March 2001, the veteran filed a claim for an increased rating. Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practicable on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1 (2005); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection for residuals of a lumbar spine injury was granted by the RO in August 1972. A 10 percent disability rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5295-5010 [lumbosacral strain-traumatic arthritis]. See 38 C.F.R. § 4.27 [hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen]. The relevant regulations for rating disabilities of the spine were revised effective September 26, 2003. See 68 Fed. Reg. 51454 (Aug. 27, 2003). The U.S. Court of Appeals for Veterans Claims (Court) has held that where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Additionally, the VA's Office of General Counsel has determined that the amended rating criteria can be applied only for periods from and after the effective date of the regulatory change. The Board can apply only the prior regulation to rate the veteran's disability for periods preceding the effective date of the regulatory change. See VAOPGCPREC 3-00 (Apr. 10, 2000). It is noted that the RO addressed the new criteria in its May 2005 supplemental statement of the case. Accordingly, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board has evaluated the veteran's back disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Based upon the rating criteria effective prior to September 26, 2003, mild limitation of lumbar spine motion warranted a 10 percent rating, a 20 percent rating was warranted when such limitation of motion was moderate, and a 40 percent rating was warranted when it was severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Similarly, prior to September 26, 2003, a 10 percent rating was assigned for lumbosacral strain with characteristic pain on motion and a 20 percent rating was assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was warranted for lumbosacral strain that was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space; a 40 percent evaluation was also warranted when only some of these symptoms are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Prior to September 26, 2003, degenerative arthritis established by X-ray findings was rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent disability rating will be assigned based upon X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent disability evaluation will be granted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002). However, these 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. These reclassified diagnostic codes include 5237 (lumbosacral or cervical strain) and 5242 (degenerative arthritis of the spine). The Board notes that the prior criteria for degenerative arthritis under Diagnostic Code 5003 continue to apply under the new revisions, but the revisions also made some additional criteria specifically applicable to arthritis. The September 2003 regulation revisions set forth a General Rating Formula for Diseases and Injuries of the Spine, 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 as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For 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 percent); For 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 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2007). When evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, 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, 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 normal combined range of motion 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). 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 as noted. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. 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. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath, 1 Vet. App. at 592. In connection with his March 2001 claim for an increased evaluation, the veteran underwent VA examination of the spine in November 2001. A report of this examination reflects that the veteran had received no treatment for his back since 1972; thus, there are no outpatient treatment records for review in connection with the claim. The veteran complained of lumbosacral pain upon twisting and stated that the pain may last for up to four days at a time. He reported that the pain remains well localized and there has been no history of radicular pain in either lower extremity. He also reported occasional numbness in the anterior aspect of both thighs after prolonged standing. The examiner noted that this is not a radicular type of paresthesia. The November 2001 examination report reflects that, upon clinical evaluation, the veteran was not in any acute distress, he walked with a normal gait, he could stand on his heels and toes without difficulty, his spine was straight, his pelvis and shoulders were level, and he had normal curvatures about his spine. There was no localized tenderness or muscle spasm and normal ranges of motion, to include painless flexion to 100 degrees, were demonstrated. Objective findings also included normal straight leg raising and Patrick test, 2+ knee and ankle jerks, sensation intact throughout both lower extremities, and no evidence of muscle atrophy or weakness in the lower extremities. There was no evidence of neurologic deficit. The diagnoses were old healed compression fracture at L4 and early minor degenerative changes, lumbosacral spine - consistent with age. Overall, the Board must find that this examination report provides only evidence against this claim. The Board acknowledges the veteran's statements that he needs help getting up and going to work on many mornings and that, inasmuch as he is self-employed, if he does not work, he does not get paid and he does not eat. However, the impairment associated with the service-connected residuals of the veteran's lumbar spine injury do not satisfy either the old or the new criteria for a schedular rating in excess of 20 percent. Specifically, it is noted that the November 2001 VA examination report shows normal range of motion, to include flexion, with no evidence of muscle spasm or guarding. Thus, there is no medical evidence to demonstrate that the veteran's lumbar spine disability warrants a rating in excess of 20 percent under the revised diagnostic codes for rating spinal disabilities. As for application of the former rating criteria for spine disorders, the November 2001 VA examination report does not show lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position in order to warrant a rating in excess of 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5295, as in effect prior to September 26, 2003. Moreover, inasmuch as the November 2001 VA examination report shows normal ranges of motion, moderate limitation of motion is not shown and there is no basis for awarding a disability rating in excess of 20 percent for the veteran's service- connected residuals of lumbar spine injury under 38 C.F.R. § 4.71a, Diagnostic Code 5292, as in effect prior to September 26, 2003. Evidence cited above was addressed by the Board in the October 2005 decision. The evidence at that time is clearly found to provide evidence against this claim. Unfortunately, the evidence submitted or obtained by the RO since this time provides even more evidence against the veteran's claim. The veteran has submitted a September 2005 medical statement from "A.K., M.D. and an August 2007 statement from "A.R., M.D." The Board finds that neither statement provides a basis to grant the veteran a higher evaluation as neither statement indicates that the criteria for a higher evaluation have been met. Both reports cite the veteran's back disorder, but do not provide medical facts that would even place into question whether the veteran is entitlement to a higher evaluation for his back. In this regard, the fact that the veteran has lumbar degenerative disc disease with lower back pain has never been in dispute. The critical question is whether the veteran meets the criteria for a higher evaluation. In this regard, the private medical reports and treatment records provide no basis to grant or deny this claim. The joint motion of April 2006 asks the Board to address the issue of whether the veteran was entitled to an additional 10 percent evaluation under 38 C.F.R. § 4.71(a) (2001) (diagnostic code 5285). At the time the veteran filed his claim, prior to the new criteria, the VA could assign the veteran a separate 10 percent evaluation for "demonstrable deformity of vertebral body" under DC 5285. The joint motion indicated that the Board should make a factual finding in the first instance as to whether the veteran's 4th lumbar vertebra is deformed. In order to finally address this issue, the veteran underwent what can only be described by the undersigned as one of the most comprehensive VA evaluations of a back disorder he has ever reviewed. The eleven page report provides a detailed evaluation of the history of the veteran's back disorder. The results of the report are clear. Regarding the critical question of whether the veteran has demonstrable deformity of vertebral body, the answer to the question was no. The report found no deformity "whatsoever". In fact, the examiner, based on a detailed review of the medical evidence, found little evidence of a compression fracture of the fourth lumbar body. The examiner referred to this issue as a "red herring". This medical finding fully addresses the Court's concern. The examiner repeated indicated that the overall examination reveals a "normal" back and that the examination was "benign". The Board finds this report to be entitled to great probative weight, providing highly probative evidence against this claim. Notwithstanding the above, the RO, in August 2007, found that this report provided a basis to award the veteran a 20 percent evaluation under DC 5242. Under DC 5242 (degenerative arthritis of the spine) (see also, Diagnostic Code 5003), a 20% rating is assigned for 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. Based on the findings of the VA examiner in March 2007 and all other reports, it is not entirely clear as to how a 20 percent evaluation can be found. A review of range of motion testing does not clearly support the 20 percent evaluation. In any event, it clearly provides evidence against a higher evaluation than 20 percent. In sum, when considering the medical record and all applicable schedular criteria, there is no medical evidence which suggests that the veteran's lumbar spine impairment warrants a disability rating in excess of 20 percent. The Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, this appears to have been clearly taken into consideration when the 20 percent award was granted. In this regard, it is noted that the ranges of motion as documented in the November 2001 VA examination reflect consideration of pain and DeLuca was cited in the VA examination of March 2007. It is important for the veteran to understand that without taking into consideration the veteran's complaints of pain, it is very difficult to justify the current 20 percent award, let alone provide a basis for a higher evaluation. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). The Board finds that there has been no showing by the veteran that the service-connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Duty to Assist Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), is codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The discussions in the August 2001 and June 2004 letters, as well as other letters sent from the VA to the veteran, collectively informed the claimant of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, in the August 2001 and June 2004 letters, the veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the August 2001 letter was sent to the appellant prior to the December 2001 rating decision. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board also notes that the August 2001 and June 2004 letters notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In addition, the appellant was advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that a reasonable inference from such communication was that the appellant must also furnish any pertinent evidence that the appellant may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. As discussed above, the Board finds that the RO has ultimately provided all notice required by § 5103(a). Therefore, any failure to make a specific request in the VCAA letter is non-prejudicial, harmless error. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, with actual knowledge of what he needs to submit, rebutting any presumption of prejudice. Statements from the veteran or his representative to the Board and Court clearly support this finding. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. The veteran was afforded two VA examinations of the spine. Moreover, all available service, VA, and private medical records have been obtained and, most importantly, the Board remanded this case to help the veteran with his claim. In this regard, it is noted that the veteran has identified VA treatment reports which may not be of record. However, inasmuch as the records which the veteran has identified are dated in 1972 and 1973, he has reported that he has not received treatment for his back impairment since 1972, and his claim for an increased evaluation was received in March 2001; the Board finds that such treatment records are not pertinent to this discussion based upon their remoteness to the veteran's claim. Accordingly, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the claimant with the claim of entitlement to an increased rating for residuals of a lumbar spine injury. VCAA only requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). In the case of the appellant's claim, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Moreover, in a recent opinion, VA General Counsel held that section 5103(a) does not require VA to seek evidence from a claimant other than that identified by VA as necessary to substantiate the claim. See VAOPGCPREC 1-2004. Thus, the failure to use the exact language of 38 C.F.R. § 3.159(b)(1) with respect to this "fourth element" was harmless, non- prejudicial error, if error at all. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not constitute prejudicial error, as the notification requirements of the VCAA have been satisfied and the veteran has been provided a meaningful opportunity to participate in development of his claim. Mayfield, supra. ORDER An evaluation in excess of 20 percent for residuals of a lumbar spine injury is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs