Citation Nr: 0812000 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-13 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 10 percent for arthritis of the dorsal spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from June 1953 to May 1955 and from December 1979 to April 1989. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in March 2007. This matter was originally on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2006, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The veteran's arthritis of the dorsal spine is manifested by pain, flexion limited to 65 degrees, full extension, lateral flexion bilaterally limited to 15 degrees, rotation bilaterally limited to 15 degrees, limited endurance, muscle spasm and increased kyphosis; but it is not manifested by flexion limited to 30 degrees or less or ankylosis. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 20 percent for the service-connected arthritis of the dorsal spine, but no higher, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5291 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Pursuant to the Board's March 2007 Remand, the Appeals Management Center scheduled the veteran for a VA examination and issued a supplemental statement of the case (SSOC). Based on the foregoing actions, the Board finds that there has been compliance with the Board's March 2007 Remand. Stegall v. West, 11 Vet. App. 268 (1998). II. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In order to satisfy the duty to notify provisions for an increased-compensation claim, VA must notify the claimant that, to substantiate a claim, the claimant 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 claimant's employment and daily life. If the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Letters dated in January 2004 advised the veteran that to establish entitlement to his increased evaluation for his service-connected disability, the evidence must show that the service-connected disability has gotten worse. A letter dated in March 2006 advised him of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The March 2006 letter told him to provide any information or evidence concerning the level of disability or when it began and gave him examples of evidence that may affect how assign a disability evaluation. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The veteran was not specifically advised that he needed to provide evidence demonstrating the effect that worsening has on the claimant's employment and daily life or of the Diagnostic Code criteria necessary for entitlement to a higher disability rating. 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. § 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. "Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the statement of the case issued in February 2005 provided the contents of the Diagnostic Codes discussed herein. Presuming that he read the documents pertinent to his claim, he has had actual knowledge of the contents of the Diagnostic Codes in question. The veteran's service medical records and VA medical treatment records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran was also accorded a VA examination in October 2007. 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). III. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. When, as here, the veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court recently held that "staged" ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's arthritis of the dorsal spine is currently evaluated as 10 percent disabling and was initially evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5291. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. Diagnostic Code 5010 refers to traumatic arthritis while the more specific Diagnostic Code 5291 referred to limitation of dorsal spine motion. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each 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 rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The veteran's request for an increase evaluation for his service-connected dorsal spine disability was received in December 2003. The Board notes that the schedular criteria for rating the spine were amended effective September 26, 2003. Under the amended regulations effective September 26, 2003, the evaluation criteria for rating disabilities of the spine were revised by establishing a general rating formula that applies to all diseases and injuries of the spine. The seven Diagnostic Codes 5286 through 5292 that involved findings of ankylosis or limitation of motion of the spine were deleted. The amended regulations added degenerative arthritis of the spine, DC 5242, which will ordinarily be evaluated under the general rating formula for diseases and injuries of the spine except when X-ray findings, as discussed under DC 5003, are the sole basis of its evaluation. Under the amended regulations, new diagnostic codes were assigned for conditions already in the Rating Schedule. The Board notes that under the revised criteria, there is no specific Diagnostic Code that only addresses the dorsal (thoracic) spine. Rather, the criteria evaluate the thoracic and lumbar spine together. The amended version of the rating criteria, as pertains to the thoracic spine, provides as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the general rating formula provides that unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent evaluation. Forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent evaluation. 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 muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent evaluation. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine 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 warrants a 10 percent evaluation. The notes to the General Rating Formula are: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The veteran was afforded a VA examination in October 2007 to assess the severity of his service-connected dorsal spine disability. The veteran complained of increased back pain, ache, soreness, tenderness, and stiffness. The veteran reported that prolonged standing, repetitive bending and lifting and weather changes bother and irritate him. The examiner noted that the veteran had some definite limited endurance. The veteran reported that flare-ups occur with repetitive use, but reported no incapacitating episodes in the past year. Examination of the back demonstrated increased kyphosis. The veteran had tenderness over the dorsal spine. Flexion was to 65 degrees, extension to zero degrees, lateral flexion bilaterally and lateral rotation bilaterally were to 15 degrees. The examiner noted that there was pain throughout the range of motion and spasm and tenderness over the dorsal spine. The examiner also noted that repetitive use caused increasing symptoms but there was no change noted at the examination. The examiner noted that there was no radicular component, and sensorimotor examination was normal. Applying the rating criteria effective from September 2003 for the veteran's service-connected arthritis of the dorsal spine, the range of motion falls under the 10 percent disability rating. The 20 percent rating, however, includes in its criteria muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, evaluation of a service-connected disability involving joints based on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40, and of functional loss due to weakness, fatigability, incoordination or pain on movement of the joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Based on the medical evidence indicating muscle involvement and increased kyphosis, and giving due consideration to the veteran's reported back pain, the Board concludes that a 20 percent rating is appropriate for the veteran's service- connected arthritis of the dorsal spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5242 (2007). However, an evaluation in excess of 20 percent for the veteran's service-connected arthritis of the dorsal spine is not warranted as the veteran has not demonstrated forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, or separate neurological abnormalities associated with his service-connected arthritis of the dorsal spine. The Board notes that there is no evidence of record that the veteran's service connected arthritis of the dorsal spine causes marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. 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. In the instant case, there is no evidentiary basis in the record for a higher rating on an extraschedular basis as there is no evidence that the veteran is unable to secure or follow a substantially gainful occupation solely as a result of his dorsal spine disability. 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) for assignment of an extraschedular evaluation. ORDER Entitlement to an evaluation of 20 percent, but no higher, for arthritis of the dorsal spine is granted subject to the law and regulations governing the payment of monetary benefits. . ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs