Citation Nr: 0812561 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 00-06 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, prior to October 16, 1996. 2. Entitlement to a rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, from December 1, 1996 to October 14, 1998. 3. Entitlement to a rating in excess of 40 percent for herniated nucleus pulposus, L4-5, postoperative. 4. Entitlement to an increased rating for status post total left hip replacement, currently evaluated as 60 percent disabling, beginning April 1, 2003. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from May 1981 to May 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 1998 and April 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2004, the veteran testified at a Central Office hearing held before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In a September 2004 decision, the Board remanded the issues of entitlement to a higher disability rating for a left hip disability for the period beginning April 1, 2003, and a higher disability rating for a low back disability for further evidentiary development. The Board denied both claims in a July 2006 decision. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2007, the Court granted a joint motion of the parties and remanded the matter to the Board for action consistent with the joint motion. These matters were remanded by the Board in November 2007 for development in accordance with the May 2007 Court Order. FINDINGS OF FACT 1. The veteran's back disability symptoms, both prior to October 16, 1996 and from December 1, 1996 to October 14, 1998, do not more closely approximate moderate limitation of lumbar spine motion than slight limitation of motion, and are not productive of muscle spasm on extreme forward bending, loss of unilateral lateral spine motion in any direction in a standing position, or any recurring attacks of intervertebral disc syndrome. 2. The veteran's back disability symptoms do not approximate pronounced IDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief; they do not approximate unfavorable ankylosis of the entire thoracolumbar spine; and they have not been productive of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. 3. There is no spiral or oblique fracture of the left shaft or anatomical neck of the left femur, with nonunion, and loose motion, or flail left hip joint; and the veteran's left hip disability does not approximate intermediate left hip ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, prior to October 16, 1996, have not been met. 38 U.S.C.A. §§ 1155, 5110(g) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5295, 5292, 5293, Plate V (2002). 2. The criteria for a rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, from December 1, 1996 to October 14, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5110(g) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5295, 5292, 5293, Plate V (2002). 3. The criteria for an initial rating in excess of 40 percent for herniated nucleus pulposus, L4-5, postoperative, have not been met. 38 U.S.C.A. §§ 1155, 5110(g) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5243, 5295, 5292, 5293, Plate V (2002, 2003, 2006). 4. The criteria for an increased rating for status post total left hip replacement, currently evaluated as 60 percent disabling, beginning April 1, 2003, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5250, 5252, 5253, 5254, 5255, Plate II (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, January 2004, November 2004, and October 2007 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. Furthermore, with respect to the veteran's claim of an increased rating for status post total left hip replacement, currently evaluated as 60 percent disabling, beginning April 1, 2003, the Board notes the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires for an increased rating claim requires that: (1) VA notify the claimant that 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; (2) 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), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant 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 claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The October 2007 VA letter notified the veteran that he must provide or ask VA to obtain medical or lay evidence that his service-connected condition had gotten worse, including evidence of the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the conditions and symptoms on his employment. It also informed the veteran that, should an increase in disability be found, a disability rating will be determined by applying the rating schedule published in title 38 Code of Federal Regulations, part 4. The letter furthermore provided examples of 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, including VA or other federal treatment records, recent Social Security determinations, statements from employers, and statements from people who had witnessed how the veteran's disability symptoms affected him. Also, the Board notes that, although a rating for limitation of flexion of the thigh is based on a specific measurement, the veteran's current disability rating for his left hip disability is higher than the maximum rating available under the Diagnostic Code for limitation of thigh motion, and there is no there is no specific measurement or test result necessary for entitlement to a disability rating in excess of 60 percent for the veteran's current status post total left hip replacement. Therefore, the Board finds that the veteran was provided adequate notice by VA under Vazquez-Flores. The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the Court held that in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran in October 2007. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in January 2008. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in January 2008. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: The veteran's service medical records, VA medical treatment records, several VA compensation and pension examinations, the veteran's testimony at his July 2004 Board hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Increased Ratings The veteran argues that he is entitled to a higher initial rating for herniated nucleus pulposus, L4-5, postoperative, currently evaluated as 10 percent disabling prior to October 16, 1996, 10 percent disabling from December 1, 1996 to October 14, 1998, and 40 percent disabling beginning October 15, 1998. He also argues that he is entitled to an increased rating for status post total left hip replacement, currently evaluated as 60 percent disabling, beginning April 1, 2003. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 is 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. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate wherever there are multiple time periods with distinctly different 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. For an increased rating claim, VA focuses 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In addition, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In the instant case, May 1996 to October 1996 VA records indicate that the veteran complained of lower back pain and radiculopathy. The veteran underwent a magnetic resonance imaging (MRI) of the lumbosacral spine in August 1996, where multiple level mild disc bulge, and L4-5 level mild left bulge, were noted. VA treatment records from October 1996 show that the veteran underwent a partial hemilaminectomy and discectomy for a herniated nucleus pulposus at L4-5. At the time of the operation, the veteran was noted to have had a three to four month history of left lower extremity radicular pain which radiated to his left medial foot. On VA examination in December 1997, the following was noted: the veteran's back was tender from L4-S1; muscles were normal, with no muscle spasm; the veteran flexed his back forward 0 to 90 degrees, with pain at L4-L5 and into the left buttock; passive flexion was 0 to 95 degrees, which, after fatiguing, was 0 to 90 degrees with pain as described above; extension of the back was 0 to 30 degrees, with pain at L4-L5 and into the left buttock; passive extension was 0 to 35 degrees, with pain in the same area, and, after fatiguing, 0 to 30 degrees; right lateral flexion was 0 to 40 degrees, with pain L4-L5 and into the left buttock, passively 0 to 45 degrees, and, after fatiguing, 0 to 40 degrees; left lateral flexion was to 45 degrees, with pain L4-L5 and into the left buttock, passively 0 to 45 degrees, which, after exercising or fatiguing, was 0 to 45 degrees, with pain as described; right lateral rotation 0 to 55 degrees, with pulling to the right of the lumbosacral spine, 0 to 55 degrees with pulling on passive motion, and 0 to 55 degrees after fatiguing; left lateral rotation was 0 to 55 degrees, with pain L4-L5 and into the left buttock, and, after passive motion, 0 to 55 degrees, and after fatiguing, 0 to 55 degrees, with pain as above; it was noted that pain started at the time that the motion was started and continued throughout the motion at each examination type. Straight-leg tests were negative. X- rays of the lumbosacral spine showed transitional lumbovertebral body or partial sacralization of L5, disc space narrowing at L4-L5, mild degenerative joint disease changes of the lumbar spine, and lumbar scoliosis towards the left. The veteran was diagnosed as having degenerative joint disease changes of the lumbar spine with degenerative disk disease at L4-L5, confirmed by x-ray, transitional lumbovertebral body or partial sacralization of L5, and scoliosis to the left in the lumbar area. At a January 1999 VA examination, the veteran reported that he sometimes experienced stiffness and pain in the low back that radiated down the left leg to the ankle. Sitting for lengthy periods of time, walking up steps, and driving caused his pain to worsen. Lumbar spine range of motion was to 90 degrees on forward flexion, with backward extension to 35 degrees, with left and right lateral flexion to 45 degrees. Left and right rotation was to 45 degrees. All motions showed evidence of pain. His gait was abnormal in that he limped on the left side. He could walk on his heels, toes, and outsides of his feet. Pain was evidenced in the left hip and right ankle during those tests, but not in the lower back. Sensation to pain and to light touch was diminished throughout the entire left lower extremity. Reflexes were decreased, but not absent, on the left knee and ankle as compared to the right. X-rays showed lumboscoliosis to the left with slight exaggeration of the normal lordotic lumbar curve. There was some sacralization of L5, as well as mild disc space narrowing at L4-L5. Osteoarthritic scoliosis was present about the apophyseal joint. VA treatment records dated from February 1998 to April 2002 indicate treatment for lumbar radiculopathy and low back pain. On VA examination in March 2003, the veteran reported left hip pain of 6-8 out of 10. There was weakness and stiffness and some instability and locking, as well as fatigue and lack of endurance. It was noted that he walked with a limp on the left side and sometimes used a cane. He could not walk on his heels, toes, or outside of his feet because he lost his balance and it was too painful in the left hip. Strength of the left leg was decreased as compared with the right. His pulses and reflexes were normal. All functions of the left hip were normal with pain. There was painful but normal range of motion with abduction of 45 degrees and flexion to 125 degrees. March 2003 x-rays showed a normal total left hip replacement with no evidence of a fractured femur, and were negative for signs of loosening or chronic infection. May 2003 VA treatment notes indicate that, on objective examination, the left hip had painless range of motion. The veteran was diagnosed as having left trochanteric bursitis related to spur. VA medical notes dated in June 2004 indicate that the veteran complained of chronic low back pain, stated that he felt that his gait was a little disrupted, which then hurt his back and hip, and reported that he did a lot of heavy lifting at work. Additional VA records from June 2004 July 2005 reflect continued complaints and treatment for his back and left hip. At a VA orthopedic evaluation in September 2005, the veteran reported the following: constant and daily low back pain that was aggravated by long periods of sitting or with bending; that he worked at a glass company in processing and this required some lifting; that back braces did not help his condition, so he did not wear one; that his hip was better, and that he was not in constant pain; and that there was occasional pain in the left lower back over the iliac crest region, not much groin pain, and occasional pain in the anterior thigh to mid lateral area. Physical examination of the back revealed forward flexion to the knees, extension of 15 degrees, and lateral flexion to 20 degrees, bilaterally. There was no evidence of spasms. Deep tendon reflexes were 2+ bilaterally in the lower extremities. X- rays of the lumbar spine showed a lumbarized S1 with no spondylolysis or listhesis. The final assessment was herniated nucleus pulposus, L4-5, postoperative. Mild fatigability and incoordination related to the back pain was recorded. Physical examination of the hip revealed full range of motion. X-rays revealed a total hip prosthesis in good position with no evidence of cup wear. There was grade 2 Brooker's noted. The final assessment was status post total left hip replacement. It was noted by the examiner that the left hip arthroplasty appeared to be functioning well. March 2007 VA notes indicate that the veteran complained of pain across his back but denied leg pain, and reported that pain was worsening. It was noted that the veteran took morphine for his pain. It was noted on physical examination that the veteran walked slowly but deliberately, that he could tiptoe and heel walk, that pain was worse with extension than flexion, that there was pain in the lower back with right straight leg raise sitting, and that there was pain with left straight leg raise sitting. It was noted that the pain in the lower back was worse that hip pain, but the veteran denied pain into legs. It was also noted that he veteran functioned at a high level, and was working at a glass company. The veteran was afforded VA examinations of the left hip and spine in December 2007. On examination of the veteran's left hip, gait showed mildly slowed propulsion using a cane, and there was objective evidence of pain with active motion on the left side. Left flexion was 0 to 125 degrees. Left extension was 0 to 30 degrees. Left abduction was 0 to 45 degrees. The veteran could cross his left leg over his right leg. There was objective evidence of pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. There were no joint ankylosis, and no weakened movements noted during the examination. The veteran expressed pain during movements pertaining to the examinations only, and other non-examination motions were without evidence of pain. December 2007 x-rays revealed scattered areas of heterotopic bone formation about the left hip region, with the remainder of the left femur unremarkable, and no abnormality of the remainder of the left femur. It was noted that the veteran was a mechanic for a glass company, and that he had not lost any time from work during the last 12 month period. The veteran was diagnosed as having radiographic evidence of left hip prosthesis without clinical evidence of significant range of motion impairments, no significant effects on usual occupation, and no effects of the problems on usual daily activities. On examination of the spine, the veteran reported sharp and severe pain in the lower back area, mostly when he had to bend, that the duration of the pain was constant and daily, and that there was no radiation of pain, flare-ups of spinal conditions, or incapacitating episodes of spine disease. On physical examination of the spine, the following was noted: normal posture, with gait revealing mildly slowed propulsion using cane; no lumbar lordosis, reverse lordosis, or thoracolumbar or cervical spine ankylosis; no spasm, atrophy, guarding, pain with motion, tenderness, row weakness of the thoracic sacrospinalis; and no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Examination of the lower extremities indicated vibration, pinprick, light touch, and position sense were all 2/2 bilaterally, with no abnormal sensations, knee jerk was 2+ bilaterally, and Babinski was normal bilaterally. On range of motion testing, flexion was 0 to 90 degrees, extension was 0 to 30 degrees, and lateral flexion and lateral rotation were 0 to 30 degrees bilaterally, all with no objective evidence of pain on active range of motion. There was no objective evidence of pain on repetitive motion, and no addional limitations after three repetitions of range of motion. It was noted that the only objective signs of pain were the veteran's reports of pain at the height of each motion, and otherwise there were no objective findings of pain, and no weakened movements noted during visit or examination. The veteran was diagnosed as having no radiographic or clinical evidence of herniated nucleus pulposus at L4-5, with MRI evidence of mild degenerative changes L2 through S1, and no significant effects on usual occupation or effects on usual daily activities. A. Herniated Nucleus Pulposus, L4-5, Postoperative Initially, the Board notes that the Rating Schedule has been revised with respect to evaluating disabilities of the spine. 67 Fed. Reg. 54,345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293 (2002)). Those provisions, which became effective September 23, 2002, replaced the rating criteria of 38 C.F.R. § 4.71a, DC 5293 (as in effect through September 22, 2002). The Board observes that the regulations were further revised, effective from September 26, 2003. 68 Fed. Reg. 51,454-58 (Aug. 27, 2003). Disabilities and injuries of the spine are now evaluated under 38 C.F.R. § 4.71a, DCs 5235 through 5243, with DC 5243 as the new code for intervertebral disc syndrome (IDS). Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). As the veteran's claim was prior to September 26, 2003, the Board will consider the regulations in effect both prior to and since September 26, 2003, as well as those both prior to and since September 23, 2002. The Board observes, however, that when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 C.F.R. § 5110(g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to September 26, 2003, the veteran was rated under Diagnostic Code (DC) 5293 for IDS. Under the criteria in effect prior to September 26, 2003, IDS is evaluated as 10 percent disabling when mild; 20 percent disabling when moderate, with recurring attacks; 40 percent disabling when severe, with recurring attacks and little intermittent relief; and 60 percent disabling when pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. Part 4, § 4.71a, DC 5293 (2002). Under the version of DC 5293 in effect from September 23, 2002, to September 25, 2003, IDS can be evaluated either on the total duration of incapacitating episodes over the past 12 months, or by combining, under 38 C.F.R. § 4.25, separate evaluations of chronic orthopedic and neurologic manifestations associated with IDS, along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5293 (2003). Under the facts of this case, prior to September 26, 2003, the veteran could also have been rated under DC 5292 for limitation of motion of the lumbar spine, or DC 5295 for lumbosacral strain. Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5292 (2002). Under the criteria in effect prior to September 26, 2003, lumbosacral strain with characteristic pain on motion warrants a 10 percent disability rating. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5295 (2002). Beginning September 26, 2003, IDS is rated under DC 5243, and thus is typically rated according to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable 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: 10 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; 20 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; 30 percent for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine; 40 percent for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire 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, DC 5243. 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. Plate V, 38 C.F.R. § 4.71a. 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 (0 degrees) always represents favorable ankylosis. See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest and treatment prescribed by a physician. The following evaluations are assignable for IDS based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board also notes that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the Board's determination of an issue. The Board evaluates all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After review of the record, the Board finds that an initial rating for herniated nucleus pulposus, L4-5, postoperative, in excess of 10 percent is not warranted either prior to October 16, 1996, or from December 1, 1996 to October 14, 1998. Also, the Board finds that a disability rating in excess of 40 percent for herniated nucleus pulposus, L4-5, postoperative, is not warranted. 1. An initial rating excess of 10 percent prior to October 16, 1996 The Board finds that the veteran's back disability does not more closely approximate the criteria for a 20 percent disability rating than those for a 10 percent rating for the period prior to October 16, 1996. While May 1996 to October 1996 VA records indicate that the veteran complained of lower back pain and radiculopathy, there is no indication in the medical evidence of decreased range of motion of the lumbar spine. Even considering additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the medical evidence does not show that the veteran's back disability symptoms, prior to October 16, 1996, more closely approximated moderate limitation of lumbar spine motion than slight limitation of motion. Also, there is no medical evidence of muscle spasm on extreme forward bending, loss of unilateral lateral spine motion in any direction in a standing position, or any recurring attacks of IDS. Thus, a disability rating in excess of 10 percent is not warranted for the veteran's herniated nucleus pulposus, L4-5, postoperative, for the period prior to October 16, 1996, under DC 5292, DC 5293, or DC 5295. As the period in question was prior to both the September 23, 2002 and September 26, 2003 changes in regulations, only the old versions of the rating criteria apply to the evaluation of the veteran's back disability during this period, as the effective date for an increase based solely on the revised criteria cannot be earlier than the effective date of the revised criteria. 2. An initial rating in excess of 10 percent from December 1, 1996 to October 14, 1998 The Board finds that the veteran's back disability does not more closely approximate the criteria for a 20 percent disability rating than those for a 10 percent rating for the period of December 1, 1996 to October 14, 1998. On VA examination in December 1997, there was no muscle spasm on bending, and no loss of lateral spine motion in any direction. Range of motion testing indicated full range of motion of the lumbar spine, with only slight loss of range on repetition due to pain and fatiguing. Also, there were no attacks of IDS noted. Even considering additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the veteran's back disability symptoms more closely approximate slight limitation of lumbar spine motion than moderate limitation of motion for the period of December 1, 1996 to October 14, 1998. Also, the record does not reflect muscle spasm on extreme forward bending, loss of unilateral lateral spine motion in a standing position, or moderate IDS with recurring attacks. Thus, a disability rating in excess of 10 percent is not warranted for the veteran's herniated nucleus pulposus, L4-5, postoperative, for the period of December 1, 1996 to October 14, 1998, under DC 5292, DC 5293, or DC 5295. As the period in question was prior to both the September 23, 2002 and September 26, 2003 changes in regulations, only the old versions of the rating criteria apply to the evaluation of the veteran's back disability during this period, as the effective date for an increase based solely on the revised criteria cannot be earlier than the effective date of the revised criteria. 3. An initial rating in excess of 40 percent The veteran's herniated nucleus pulposus, L4-5, postoperative, does not approximate the criteria for a disability rating in excess of 40 percent under any applicable Diagnostic Code. A 40 percent rating is the maximum rating available under the old versions of both DC 5292 and DC 5295. Thus, a higher rating under either of those codes is not available. The Board notes that some radiating pain from the veteran's back disability has been noted in the record, including occasional pain in the anterior thigh to mid lateral area noted on September 2005 VA examination, although there was noted to be no radiation of pain on December 2007 VA examination. However, the medical record reflects no symptoms approximating pronounced IDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. In this regard, the Board notes that no demonstrable muscle spasm or absent ankle jerk have ever been noted, and that reflexes have been mostly noted to be normal in the medical record, although, on January 1999 VA examination, reflexes were decreased, but not absent, in the left knee and ankle as compared to the right. As the veteran's herniated nucleus pulposus, L4-5, postoperative, has not been productive of symptomatology approximating the severity of those symptoms listed in the criteria for a 60 percent rating under the version of DC 5293 in effect prior to September 23, 2002, a disability rating in excess of 40 percent under that version of DC 5293 is not warranted. The record does not reflect unfavorable ankylosis of the entire thoracolumbar spine, or any limitation of spine motion approximating unfavorable ankylosis. In this regard, the Board notes that the veteran has had essentially full, although painful, range of motion on medical examination, and that he has maintained a job throughout the appeals period that has required at least some heavy lifting. Also, the record does not reflect periods of acute signs and symptoms due to IDS that have required bed rest and treatment prescribed by a physician, and the veteran denied incapacitating episodes from his back on December 2007 VA examination. As the record reflects neither unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating episodes of IDS having a total duration of at least 6 weeks during the past 12 months, a disability rating in excess of 40 percent for herniated nucleus pulposus, L4-5, postoperative, under either DC 5243, or the version of DC 5293 in effect from September 23, 2002 to September 25, 2003, is not warranted. Thus, the veteran's herniated nucleus pulposus, L4-5, postoperative, does not warrant an initial disability rating in excess of 10 percent either prior to October 16, 1996, or from December 1, 1996 to October 14, 1998, and it does not warrant a 40 percent rating, under any applicable Diagnostic Code. B. Status Post Total Left Hip Replacement The veteran's status post total left hip replacement is currently evaluated as 60 percent disabling under DC 5255. DC 5255 provides for assignment of ratings in evaluating impairment of the femur. A 60 percent evaluation is warranted for either fracture of surgical neck of the femur with false joint, or for fracture of shaft or anatomical neck of the femur with nonunion, without loose motion, and weightbearing preserved with the aid of a brace. An assignment of an 80 percent evaluation is warranted for a spiral or oblique fracture of shaft or anatomical neck of the femur, with nonunion, and loose motion. 38 C.F.R. § 4.71a, DC 5255. An 80 percent evaluation is warranted for flail hip joint. 38 C.F.R. § 4.71a, DC 5254. DC 5250 provides for rating the hip on the basis of ankylosis. Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction is to be rated 60 percent disabling; intermediate ankylosis of the hip is to be rated 70 percent disabling; and extremely unfavorable ankylosis, with the foot not reaching ground, crutches necessitated, is to be rated 90 percent disabling, and is entitled to special monthly compensation. 38 C.F.R. § 4.71a, DC 5250. DC 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Normal ranges of motion of the hip are hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. In addition, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). After reviewing the record, the Board finds that the veteran's status post total left hip replacement does not more closely approximate the criteria for a 70 or 80 percent disability rating under any applicable Diagnostic Code than those for a 60 percent disability rating, beginning April 1, 2003. First, beginning April 1, 2003, the record does not reflect spiral or oblique fracture of shaft or anatomical neck of the femur, with nonunion, and loose motion, or flail hip joint. March 2003 x-rays showed a normal total left hip replacement with no evidence of a fractured femur, and were negative for signs of loosening or chronic infection. September 2005 x- rays revealed a total hip prosthesis in good position with no evidence of cup wear. December 2007 x-rays revealed scattered areas of heterotopic bone formation about the left hip region, with the remainder of the left femur unremarkable, and no abnormality of the remainder of the left femur. Thus a disability rating for the veteran's status post total left hip replacement in excess of 60 percent is not available under either DC 5254 or DC 5255, beginning April 1, 2003. Second, beginning April 1, 2003, the record reflects that the veteran's left hip disability is not productive of symptoms approximating either intermediate ankylosis or extremely unfavorable ankylosis of the left hip. On September 2005 and December 2007 VA examinations, range of motion of the hip was essentially normal, with no joint ankylosis. Even considering additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the veteran's hip disability has not been shown to approximate intermediate ankylosis. Rather, the veteran's hip replacement has been consistently noted to function well. Thus, a disability rating in excess of 60 percent under DC 5250, beginning April 1, 2003, is not warranted. The Board has considered the criteria under DC 5252 for limitation of flexion of the thigh. However, as the veteran's current disability rating for his left hip disability is higher than the maximum rating available under DC 5252, the criteria under DC 5252 are not applicable. Accordingly, a disability rating in excess of 60 percent for status post total left hip replacement, beginning April 1, 2003, is not warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, prior to October 16, 1996, is denied. Entitlement to an initial rating in excess of 10 percent for herniated nucleus pulposus, L4-5, postoperative, from December 1, 1996 to October 14, 1998, is denied. Entitlement to an initial rating in excess of 40 percent for herniated nucleus pulposus, L4-5, postoperative, is denied. Entitlement to an increased rating for status post total left hip replacement, currently evaluated as 60 percent disabling, beginning April 1, 2003, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs