Citation Nr: 0812890 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-28 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from April 1972 until April 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. Throughout the rating period on appeal, the veteran's low back disability is productive of complaints of pain; objectively, he has forward flexion of the lumbar spine to 90 degrees, with no muscle spasm or guarding and with no ankylosis. 2. The weight of the competent evidence does not attribute the veteran's neurologic symptomatology of the lower extremities to his service-connected degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the rating period on appeal, the veteran is assigned a 20 percent evaluation for a degenerative disc of the lumbar spine pursuant to DC 5243, which addresses intervertebral disc syndrome. The orthopedic component of the veteran's low back disability is evaluated under the general rating formula for diseases and injuries of the spine. Under that general rating formula, a 20 percent rating is warranted where the evidence reveals 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 is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5243. In order to be entitled to the next-higher 40 percent evaluation, the evidence must demonstrate forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5243. In the present case, there is no support for assignment of the next-higher 40 percent evaluation under the general rating formula for any portion of the rating period on appeal. Indeed, upon VA examination in May 2005, the veteran had forward flexion of the lumbar spine to 90 degrees. Again, flexion would have to be limited to 30 degrees to achieve a higher rating. There is also no showing of muscle spasms, guarding, or ankylosis. The Board acknowledges that additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination must be considered in evaluating musculoskeletal disabilities. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the veteran reported at his May 2005 VA examination that lateral motion of the spine caused pain. VA clinical records also reflect complaints of low back pain and a November 2002 record noted his use of a TENs unit. However, the competent evidence simply does not show that such pain has resulted in additional functional limitation such as to find that his disability picture most nearly approximates the next-higher 40 percent rating. The Board has also considered whether an increased rating is warranted based on incapacitating episodes. Indeed, under DC 5243, a 40 percent evaluation applies where the evidence demonstrates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. Note (1) to the new version of DC 5243 defines an "incapacitating episode" as "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. The evidence does not establish incapacitating episodes, as defined by Note 1 to DC 5243, having a total duration of at least 4 weeks but less than 6 weeks during a previous 12- month period. As such, an increased rating based on incapacitating episodes is not warranted. Additionally, Note (1) of the general rating formula instructs the rater to separately evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. In the present case, the evidence does indicate neurologic symptomatology throughout the rating period on appeal. Specifically, the veteran consistently complained of numbness and tingling in the lower extremities, as well as a burning sensation on the soles of his feet. In this regard, the Board notes that he is competent to give evidence about the symptoms he experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, despite his neurologic complaints, the weight of the evidence does not demonstrate that such symptoms are a component of the service-connected degenerative disc disease, as will be explained below. A March 2002 VA EMG consult revealed changes of chronic denervation in multiple myotomes in both legs and raised the suspicion of lumbosacral polyradiculopathy. However, it was noted that a specific diagnosis could not be made. Subsequent EMG consults in April 2004 and May 2005 did not identify a clear etiology for the veteran's neurologic symptoms of the lower extremities. Furthermore, a VA examiner in May 2005 concluded that it would be purely speculative to find a relationship between the veteran's demylinating condition and his current back disorder. That opinion was offered following an objective examination and after a review of the claims file. For these reasons it is found to be highly probative. Moreover, no competent evidence of record refutes that opinion. The veteran himself believes that his current neurologic problems of the lower extremities is caused by his service- connected degenerative disc disease. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In sum, there is no support for a rating in excess of 20 percent, or for assignment of a separation neurologic evaluation, for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in October 2004, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. The Board acknowledges that the VCAA letter sent to the veteran in October 2004 does not meet the requirements of Vazquez-Flores and is not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, the May 2005 statement of the case set forth the diagnostic criteria for the disability at issue and also included the provisions of 38 C.F.R. § 4.1, which reference impairment in earning capacity as a rating consideration. Based on the above, he can be expected to understand what was needed to support his claim, including the impact of his disability on his daily life and ability to work. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements. For example, in his substantive appeal, he stated that he had three months of "down time" per year due to his back pain, showing how his disability affected his daily life. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains his post- service reports of VA treatment and examination. Moreover, his statements in support of his claim are of record. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to his claim. For the above reasons, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs