Citation Nr: 0812852 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-10 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome. 2. Entitlement to restoration of a 50 percent rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from January 1953 to July 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which confirmed a 10 percent rating for a lumbar spine disorder, later diagnosed as intervertebral disc syndrome, and increased a previous noncompensable rating to 30 percent for bilateral hearing loss. Timely appeals were noted with respect to that decision. During the course of the appeal, the veteran's ratings were increased to 20 percent for intervertebral disc syndrome, effective January 17, 2003, and to 50 percent for bilateral hearing loss, effective April 1, 2005. In December 2006, VA proposed a reduction of the veteran's rating for bilateral hearing loss from 50 percent to 20 percent. By rating action dated July 2007, the RO formally reduced the veteran's evaluation for bilateral hearing loss to 40 percent, effective November 1, 2007. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issues remain in appellate status. A hearing on these matters was held before the undersigned Veterans Law Judge sitting at the RO on February 14, 2008. A copy of the hearing transcript has been associated with the file. The issue of restoration of a 50 percent rating for bilateral hearing loss is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDING OF FACT The veteran's intervertebral disc syndrome is manifested by flexion to 55 degrees, extension to 15 degrees, lateral flexion to 25 degrees bilaterally, and rotation to 25 degrees bilaterally. There is no evidence of ankylosis or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for intervertebral disc syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated February 2003 and December 2006, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim for an increased rating; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In December 2006, the veteran was notified of the way initial disability ratings and effective dates are established. According to Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), in an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Further, 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. Additionally, 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation; for example, 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. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881, 889 (Fed.Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the 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 that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps 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. Id. There must be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3rd Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The veteran has demonstrated an awareness of the need to present evidence showing the impact of his disability on his employment and daily life. In his February 2008 hearing testimony, the veteran testified as to the increase in the severity of his symptoms and the impact of his intervertebral disc syndrome on activities of daily living, such as dressing and bathing. During his VA examinations, the veteran noted the impact of his back disability on his ability to work. Actual knowledge is established by his statements demonstrating an awareness of what is necessary to substantiate the claim. See Vazquez-Flores, slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Further, although the veteran has not received notice of the criteria necessary for an increased rating under DC 5243, VA has obtained all relevant evidence necessary to make a decision based upon that Diagnostic Code. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the veteran's service-connected intervertebral disc syndrome since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The April 2003, April 2005 and November 2006 VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence which was needed to establish the claim and since VA has obtained all relevant evidence. Any defective predecisional notice error was rendered non- prejudicial in terms of the essential fairness of the adjudication. Thus, the Board finds that although there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claim. The Board is satisfied that the duties to notify and assist have been met. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). During the course of the veteran's claim, the regulations for rating disabilities of the spine were revised, effective September 26, 2003. See 68 Fed. Reg. 51454 (Aug. 27, 2003). The General Counsel of VA has held that where a law or regulation changes during the pendency of a claim, the Board should first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the former and revised versions of the regulation. However, if the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided a 10 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating intervertebral disc syndrome. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provided that, when evaluating on the basis of chronic manifestations, orthopedic disabilities were to be evaluated using criteria for the most appropriate orthopedic diagnostic code or codes. Neurologic disabilities were to be evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provided that, if intervertebral disc syndrome was present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment was to be rated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method resulted in a higher rating for that segment. 38 C.F.R. § 4.71a. Diagnostic Code 5243 (effective September 26, 2003) provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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. 38 C.F.R. § 4.71a. A 20 percent disability 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. Id. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent disability rating is assigned 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. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment and the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. 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 is zero to thirty degrees, and left and right lateral rotation is zero to 30 degrees on the right and left. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Functional loss, which is the inability to perform the normal working movements of the body within normal limits, specifically due to pain and weakness on motion, also is to be considered when ascertaining the severity of musculoskeletal disabilities. 38 C.F.R. §§ 4.40, 4.45 and 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Analysis On VA examination of the lumbar spine in April 2003, flexion was to 80 degrees and extension was to 30 degrees. Lateral flexion was to 40 degrees bilaterally. Rotation was to 35 degrees bilaterally. There was no ankylosis present. There was some loss of function on repetitive movements due to pain. The veteran reported radiation down the left leg, and signs of radiculopathy were noted by the examiner. The veteran indicated that he had lost some time from work because of his back pain. He reported incapacitating episodes, but noted that his physician had not recommended bed rest. On VA examination of the lumbar spine in April 2005, flexion was to 90 degrees and extension was to 20 degrees. Lateral flexion was to 20 degrees bilaterally. Rotation was to 20 degrees bilaterally. There was no ankylosis. The neurological examination was within normal limits and motor function in the lower extremities was 5/5. There was no indication that bed rest had been prescribed by his physician. He had lost no work because of his back symptoms. However, there was some functional loss due to pain. A third VA examination took place in November 2006. Flexion was limited to 55 degrees and extension to 15 degrees. Lateral flexion was to 25 degrees bilaterally. Rotation was to 25 degrees bilaterally. Upon repetition, there was some functional loss due to pain, lack of endurance, and increased fatigue. The veteran had an antalgic gait and evidence of radiculopathy in his left leg. Incapacitating episodes were denied. The veteran had retired from work, and there was no indication that his spine disorder played a role in his retirement. Intervertebral disc syndrome affecting the deep peritoneal nerve was diagnosed. The Board finds that the evidence does not show entitlement to an increased rating under the old schedular criteria. There is no evidence that the veteran was prescribed bed rest for incapacitating episodes. Thus, entitlement to an increased rating under former Diagnostic Code 5293 is not warranted. Under the old criteria, the orthopedic manifestations of the veteran's lower back symptoms would most appropriately be evaluated under Diagnostic Code 5292 for limitation of motion of the lumbar spine. Under DC 5292, a 10 percent rating was warranted for slight limitation of motion of the lumbar spine, 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, and a 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2003). The orthopedic manifestations of the veteran's intervertebral disc syndrome can be termed "moderate" under the old DC 5292. In November 2006, the veteran's flexion was limited to 55 degrees and his extension to 15 degrees, a substantial change from the ranges of motion seen on VA examinations in April 2003 and April 2005. The evidence does not warrant a finding of severe limitation of motion. He was able to ambulate without assistance and perform functions of daily living. The evidence showed that the veteran's intervertebral disc syndrome causes neurological manifestations in the form of radiculopathy. However, the veteran is in receipt of a separate 10 percent evaluation for his left leg radiculopathy since November 2006. Under the new schedular criteria, the veteran's disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The veteran's intervertebral disc syndrome is currently manifested by flexion limited to 55 degrees, extension to 15 degrees, lateral flexion to 25 degrees bilaterally, and rotation to 25 degrees bilaterally. A rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine is warranted only when flexion is limited to 15 degrees or less, or there is ankylosis of the spine. Entitlement to an increased rating under the General Rating Formula has not been shown. There is also no basis for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The evidence does not show that the veteran suffers from incapacitating episodes that resulted in prescribed bed rest. Although on examination in April 2003 and April 2005 the veteran recounted episodes of severe pain described by him as incapacitating, there is no evidence that the pain resulted in bed rest prescribed by a physician. Entitlement to an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes has not been shown. The Board has also considered whether a higher evaluation is warranted on the basis of functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 204-7 (1995). The evidence shows that there is some functional loss due to pain, fatigability and lack of endurance. However, even when this effect is considered, the Board finds that there is not adequate pathology or symptoms that would warrant an evaluation in excess of 20 percent for functional loss. See DeLuca, 8 Vet. App. 204-7 (1995). Higher alternative ratings are available under both the old and revised schedular criteria. There is no evidence of a fracture of the vertebra or ankylosis of any part of the spine, however, that would entitle the veteran to an increased rating under any of those applicable Diagnostic Codes. There is also no evidence of severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, 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 that would entitle the veteran to an increased rating under the former DC 5295. The Board must address referral to the Chief Benefits Director or the Director, Compensation and Pension Service, under 38 C.F.R.§ 3.321 (b)(1) only where circumstances are presented which the Director might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence of record does not demonstrate that the veteran's service-connected intervertebral disc syndrome presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. A referral for consideration of an extraschedular rating is not warranted. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher evaluation for intervertebral disc syndrome. Thus, the preponderance of the evidence is against the veteran's claim for an increased evaluation. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome is denied. REMAND Following the December 2006 proposed reduction in rating for bilateral hearing loss, the veteran was afforded VA audiological examination in July 2007. This examination included a controlled speech hearing test (Maryland CNC) and a puretone audiometry test. However, the puretone audiometry test does not indicate the pure tone threshold at 3000 Hertz in the left ear. Thus, the results cannot be certified. These findings are inadequate to determine the veteran's level of disability, which is of paramount concern when a reduction in rating is proposed. Thus, a remand for a new audiological examination is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA audiology examination to determine the severity of his bilateral hearing loss. All testing deemed necessary by the examiner should be performed and the results reported in detail, including all puretone thresholds, puretone threshold averages and Maryland CNC tests. The claims folder must be available for review by the examiner in conjunction with the examination and this should be acknowledged in the report. 2. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs