Citation Nr: 0812959 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-17 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date prior to April 13, 2004, for the assignment of a 20 percent disability rating for service-connected chronic lumbosacral strain. 2. Entitlement to an effective date prior to August 21, 2006, for the assignment of a 40 percent disability rating for service-connected chronic thoracolumbar strain, also claimed as degenerative disc disease. 3. Whether the veteran is entitled to separate compensable disability ratings for the thoracic and lumbar spine disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from October 1985 to February 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In October 2007, the veteran testified at a personal hearing in Washington, DC, over which the undersigned Acting Veterans Law Judge presided. A transcript of the hearing has been associated with the veteran's claims file. During the October 2007 hearing, the veteran raised the issue of entitlement to service connection for a neck disorder, secondary to his service-connected chronic thoracolumbar strain, also claimed as degenerative disc disease. The Board does not have jurisdiction of this issue as it has not been adjudicated by the RO. The matter is referred to the RO for appropriate action. The case has been advanced on the Board's docket under the provisions of 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. Service connection for chronic lumbosacral strain was initially granted by rating action dated in September 1986, at which time a 10 percent disability rating was assigned effective as of February 28, 1986; a notice of disagreement was not received to initiate an appeal from that determination. 2. By rating actions dated in August 1987, September 1987, July 1990, and August 1990, the RO confirmed and continued the 10 percent disability rating for the service-connected chronic lumbosacral strain; a notice of disagreement was not received to initiate an appeal from any of the determinations. 3. A formal claim for an increased disability rating for the service-connected chronic lumbosacral strain was received by the RO in April 2004. 4. In a decision of the Board dated in July 2006, the veteran was awarded an increased disability rating of 20 percent for his service-connected chronic lumbosacral strain. This decision was implemented by rating action of the RO dated in September 2006 and was made effective as of April 13, 2004, the date of the veteran's claim for an increased disability rating. 5. By rating action dated in March 2007, the RO awarded an increased disability rating of 40 percent for the service- connected chronic thoracolumbar strain, also claimed as degenerative disc disease, effective as of August 21, 2006, the date of the veteran's renewed claim for an increased disability rating. 6. Applicable regulations do not allow for separate disability ratings for the thoracic strain and the lumbar strain. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 13, 2004, for the grant of a 20 percent disability rating for service-connected chronic lumbosacral strain have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.157(b); 3.400 (2007). 2. The criteria for an effective date prior to August 21, 2006, for the grant of a 40 percent disability rating for service-connected chronic thoracolumbar strain, also claimed as degenerative disc disease, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.157(b); 3.400 (2007). 3. The claim of entitlement to separate disability ratings for the lumbosacral spine disorder and the thoracic spine disorder is without legal merit. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 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). Specifically, the notice must include notice 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). By letters dated in April 2004, January 2006, September 2006, October 2006, and January 2007, the veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was, in essence, told to submit all relevant evidence he had in his possession. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish a disability rating or effective date by the letters dated in September 2006 and January 2007. Adequate notice has been provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The dispositive factual matters pertain to documents that have been on file for many years. There is no indication in the record that there is any additional relevant evidence that has not been associated with the claims file. As the current issues are a legal matter, there is no need to obtain a VA compensation examination or medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Earlier effective date The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2007). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (2007). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2007). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2007). The applicable statutory and regulatory provisions require that VA look to all communications from the appellant which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). In cases involving increases in disability compensation, the effective date will be the earliest date at which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the date of receipt of the claim will be the effective date. 38 C.F.R. § 3.400(o)(2) (2007). A total disability rating based upon individual unemployability claim qualifies as a claim for increased disability compensation and is subject to the specific criteria under 38 U.S.C.A. § 5110(b)(2) (West 2002) and 38 C.F.R. § 3.400(o)(2) (2007). The date of outpatient or hospital examination will be accepted as the date of receipt of a claim for increased benefits when such reports relate to an examination or treatment of a disability for which service connection was previously established. 38 C.F.R. § 3.157(b); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); but see Hazan v. Gober, 10 Vet. App. 511, 518 (1997). Under 38 C.F.R. § 3.157(b)(1), once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service- connected disability was not compensable in degree, receipt of outpatient, hospital examination, or admission to a VA or uniformed services hospital will be accepted as receipt of an informal claim for an increased evaluation based on the date of the outpatient treatment, hospital examination, or admission to a VA or uniformed services hospital. Chronic lumbosacral strain The Board has reviewed the evidence of record, including the following: service medical records; reports of VA examinations in August 1986, February 1990, June 2004 and May 2006; reports of VA hospitalizations, dated from June 30, 1987 to August 6, 1987, August 29, 1987 to September 4, 1987, July 1988 to August 1988, and from May 1990 to June 1990; VA clinical records, dated from 1988 to 2007; and copies certain treatises submitted by the veteran. Entitlement to service connection for chronic lumbosacral strain was initially granted by rating action dated in September 1986, at which time a 10 percent disability rating was assigned effective as of February 28, 1986. A notice of disagreement was not received to initiate an appeal from that determination. A VA examination report dated in August 1986 shows that the veteran reported with back spasms. He was resistant to all back movements. The diagnosis was chronic lumbar pain; no objective findings. X-rays of the lumbosacral spine showed that disc spaces were well maintained. The 10 percent disability rating was confirmed and continued by rating decisions of the RO dated in August 1987, September 1987, July 1990, and August 1990. A VA examination report dated in February 1990 shows that the lower extremity reflexes were present but weak, and no sensory change was detected. Straight leg raising was positive at about 15 degrees, bilaterally. The diagnosis was chronic lumbosacral strain versus degenerative disc disease, without radiculopathy. X-rays demonstrated well maintained intervertebral disc spaces. X-rays of the lumbosacral spine taken in May 1990 were unremarkable except for mild degenerative arthritis of the facet joints of L5-S1. VA outpatient treatment records dated from October 2003 to August 2004 show that the veteran was able to get onto the examining table without difficulty. Straight leg raising was negative for pain; knee jerk and ankle jerk reflexes were 2+ and equal. He had full range of motion of the back without guarding. A formal claim for an increased disability rating for the service-connected chronic lumbosacral strain was received by the RO in April 2004. A VA examination report dated in June 2004 shows that the examiner indicated that it was very difficult to elicit any information from the veteran as he had been vague in responding to questions about the time or severity of his symptoms. It was observed that he walked slowly with a cane, but that he had no limp or gait changes. He made minimal effort to follow the examiner's requests during the examination. He refused to repeat range of motion so that he could be evaluated for fatigability or increased pain or change in range of motion. Physical examination did reveal 10 degrees of left lateral flexion and 20 degrees of right lateral flexion. He had 5 degrees of forward flexion and was unwilling to attempt to flex any further. On straight leg raise testing, he was unwilling to raise his leg more than one inch off the examining table. However, his passive straight leg raise was negative to 70 degrees. With the veteran distracted, it was determined that his deep tendon reflexes were 2+ and equal, bilaterally. X-rays of the lumbosacral spine were normal. The diagnosis was mild lumbar strain. According to the examiner, the findings were inconclusive and inaccurate, as the veteran's physical examination findings and radiological findings did not correlate. A magnetic resonance imaging (MRI) study of the lumbar spine dated in September 2004 shows diffuse disc bulging at L4-5. No nerve root impingement was seen. Minimal disc bulging at T11-12 was also seen on MRI of the thoracic spine. A VA examination report dated in May 2006 shows that the veteran walked with a cane. There was bilateral negative straight leg raise. Spasm was detected in the upper lumbar spine. There was loss of lumbar lordosis. Gait was slow and mildly antalgic. Lumbar spine flexion was zero to 60 degrees; extension was zero to 30 degrees; lateral flexion was zero to 26 degrees, bilaterally; and rotation was zero to 30 degrees, bilaterally. Deep tendon reflexes were 2+ and symmetrical at the knees and ankles, bilaterally. Motor strength was 5/5, bilaterally. Lower extremity sensation was intact, bilaterally. The thoracic spine was nontender to palpation. The examiner indicated that after review of the claims file, including the X-ray reports at the time of the original injury and over the years afterwards, the assessment was that the veteran had sustained a muscle strain while in service. The examiner added that the veteran's disc disease was not caused by muscle strain, and that typically, muscle strains resolve. The examiner concluded that it was unlikely that the muscle strain in 1985 caused current disc findings on MRI about 20 years later. It would be a resort to speculation to state that the veteran's current disc changes were due to muscle strain 20 years earlier. In a decision of the Board dated in July 2006, the veteran was awarded an increased disability rating of 20 percent for his service-connected chronic lumbosacral strain. This decision was implemented by rating action of the RO dated in September 2006 and was made effective as of April 13, 2004, the date of the veteran's claim for an increased disability rating. In August 2006, the veteran submitted a new claim for an increased disability rating for his service-connected chronic lumbosacral strain. A VA outpatient treatment record dated in January 2007 shows that the veteran reported continued lumbar pain. He described difficulty sleeping as a result of his back symptoms. He indicated that he was using a cane all the time, and that his balance was off resulting in occasional falls. Physical examination revealed 30 degrees of flexion at the thoracolumbar junction before pain would stop further bending. He was able to flex chin to chest, and angle was greater than 30 degrees. The impression, in pertinent part, was back pain and degenerative disc disease. By rating action dated in March 2007, the RO awarded an increased disability rating of 40 percent for the service- connected chronic thoracolumbar strain, also claimed as degenerative disc disease, effective as of August 21, 2006, the date of the veteran's reopened claim for an increased disability rating. During his October 2007 hearing, the veteran asserted that his current 40 percent disability rating should be effective as of the date of his original claim of service connection in 1986 as his symptoms have been consistent since that time. He also asserted that the symptoms associated with his thoracic and lumbar spines should be rated separately, and that he should have been awarded a separate disability rating for arthritis of the thoracolumbar spine. An effective date prior to April 13, 2004, for the assignment of a 20 percent disability rating for service-connected chronic lumbosacral strain As noted above, prior to the veteran's April 2004 claim for an increased disability rating, the 10 percent disability rating was most recently confirmed and continued by rating decision of the RO dated in August 1990. The veteran did not appeal this decision, thus it became final. 38 U.S.C.A. § 7105(c) (2007). In April 2004, the veteran filed a claim for an increased disability rating for the service-connected chronic lumbosacral strain. In support of his claim, he submitted VA outpatient treatment records dated from October 2003 to August 2004 which had shown that he was able to get onto the examining table without difficulty, that straight leg raising was negative for pain, and that he had full range of motion of the back without guarding. He also underwent VA examinations in June 2004 and May 2006, and submitted the September 2004 MRI study. In a decision of the Board dated in July 2006, the veteran was awarded an increased disability rating of 20 percent for his service-connected chronic lumbosacral strain. This decision was implemented by rating action of the RO dated in September 2006 and was made effective as of April 13, 2004, the date of the veteran's renewed claim for an increased disability rating. The RO reasoned that upon reviewing the foregoing evidence, as it was not factually ascertainable that the veteran had exhibited an increase in his disability within one year of receipt of the reopened claim, the effective date would be the date of his renewed claim which was in April 2004. See 38 C.F.R. § 3.400(o)(2). There was no other competent medical evidence of record showing symptoms or findings that met the criteria for a 20 percent disability rating that were dated within the one-year period prior to April 2004. The Board acknowledges the veteran's contention that he has been suffering from an increase in his low back disability for a number of years. However, if the increase became ascertainable more than one year prior to the date of receipt of the reopened claim, then the proper effective date would still be the date of the claim which in this case was in April 2004. See generally Harper v. Brown, 10 Vet. App. 125 (1997). In other words, if the veteran is correct in saying that an increase took place prior to April 2004, then under applicable law VA would not be able to assign an effective date prior to that date of claim since he had not filed a claim for an increase, either formal or informal, prior to that time, following the final August 1990 RO decision. The only way the veteran could attempt to overcome the finality of the August 1990 decision in an attempt to gain an earlier effective date, is to request a revision of that decision based on clear and unmistakable error (CUE) or by a claim to reopen based on new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 5109A(a) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."); 38 U.S.C. § 5108 ("if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."); Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). The veteran has done neither. Since the August 1990 RO decision is final, the decision is not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). CUE in any of the prior RO decisions has not been alleged. There is no legal basis for making the effective date of the 20 percent disability rating for chronic lumbosacral strain retroactive to a date prior to the currently assigned April 13, 2004, as the veteran seeks. In the present case, the RO has found that an increase in severity within one year of the date of the renewed claim was not shown, and an effective date was assigned accordingly. The Board agrees with that finding, and there is no basis for an effective date prior to April 13, 2004. An effective date prior to August 21, 2006, for the assignment of a 40 percent disability rating for service-connected chronic thoracolumbar strain Following the final July 2006 decision of the Board, in August 2006, the veteran submitted a renewed claim for an increased disability rating for his service-connected chronic lumbosacral strain. In support of his claim, he submitted VA outpatient treatment records dated in January 2007 which showed that he had continued lumbar pain. He described difficulty sleeping as a result of his back symptoms. He indicated using a cane all the time, and that his balance was off resulting in occasional falls. Physical examination revealed 30 degrees of flexion at the thoracolumbar junction before pain would stop further bending. He was able to flex chin to chest, and angle was greater than 30 degrees. The impression, in pertinent part, was back pain and degenerative disc disease. By rating action dated in March 2007, the RO awarded an increased disability rating of 40 percent for the service- connected chronic thoracolumbar strain, effective as of August 21, 2006, the date of the veteran's reopened claim for an increased disability rating. As noted above, in this case, the veteran's request to establish an effective date prior to August 21, 2006, amounts to a request to disregard the law regarding finality. The July 2006 decision of Board awarding an increased disability rating was final. The veteran did not appeal that decision. As noted above, the only way the veteran could attempt to overcome the finality of that decision, in an attempt to gain an earlier effective date, is to request a revision of that decision based on CUE or by a claim to reopen based on new and material evidence. See Cook, 318 F.3d at 1339; Andrews, 421 F.3d at 1281; see also 38 U.S.C. §§ 5109A(a), 5108 (West 2002 & Supp. 2007). The veteran has done neither. Since the July 2006 decision of Board is final, the decision is not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 7104, 5109A; see Rudd, 20 Vet. App. at 296. CUE in any of the prior RO or Board decisions has not been alleged. There is no legal basis for making the effective date of the current 40 percent disability rating for chronic lumbosacral strain retroactive to a date prior to the currently assigned August 21, 2006, as the veteran seeks. The July 2006 final Board decision bars such an effective date. See 38 U.S.C.A. § 7104. Thus, the attempt to overcome finality in raising a freestanding claim must be denied. A separate disability rating for thoracic and lumbar spine disabilities The veteran submitted a claim for service connection for a thoracic spine disorder in August 2006. He also submitted a claim for degenerative disc disease of both the lumbar spine and thoracic spine in October 2006. As indicated above, the veteran is already service-connected for a chronic lumbosacral strain which has been rated pursuant to Diagnostic Code 5237 which provides the rating criteria for a lumbosacral or cervical strain. Effective September 26, 2003, a lumbosacral strain is rated under the general rating formula for diseases and injuries of the spine. In pertinent part, under the general rating formula, a 40 percent disability rating will be assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). The applicable diagnostic code provision for a thoracic spine disability is the same as that for the already service- connected lumbosacral spine disability, as the thoracolumbar spine as a whole is contemplated under Diagnostic Code 5237. The thoracolumbar spine is considered as one spinal segment. There is no entitlement under the law to separate disability ratings for the lumbar spine and the thoracic spine. Range of motion is based on the entire thoracolumbar spine. As the veteran's claim associated with a thoracic spine disorder was received by the RO in August 2006, the current version of the regulations are applicable, and the law does not allow for a separate disability rating. Therefore, the claim of entitlement to a separate disability rating for a lumbosacral spine disorder and a thoracic spine disorder under Diagnostic Code 5237 lacks legal merit, and must be denied as matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes that the veteran's service connected back disorder is not shown to have resulted in intervertebral disk syndrome, so as to warrant evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to the asserted entitlement to a separate disability rating for disk disease of the thoracolumbar spine, the May 2006 VA examination report concluded that it was unlikely that a muscle strain in 1985 caused his current disk findings on MRI dated 20 years later, and that it would be a resort to speculation to state that his current disc changes were due to muscle strain 20 years earlier. The Board notes that the RO interpreted the January 2007 VA outpatient treatment record as supporting a relationship between the veteran's lumbosacral strain and his degenerative disc disease. Even if this were the case, his thoracolumbar spine with degenerative disc disease would be rated using the criteria under Diagnostic Code 5003 which provides for degenerative arthritis. Under this diagnostic code provision, degenerative arthritis established by X-ray is rated on the basis of limitation of motion under the appropriate diagnostic code for specific joints involved. The veteran's service-connected lumbosacral strain has been evaluated based on the range of motion of his thoracolumbar spine which was shown to be limited to 30 degrees in January 2007. As stated, the spinal segment of the thoracolumbar spine is considered as one in the determination of range of motion. The currently assigned 40 percent disability rating is appropriate for range of motion limited to 30 degrees. A higher disability rating of 60 percent would not be warranted unless there were favorable ankylosis of the cervical and thoracic spine or intervertebral disc syndrome with incapacitating episodes of at least 6 weeks during the last twelve months. The Board finds that the veteran's arthritis has already been contemplated by the assigned disability rating for his service-connected chronic lumbosacral strain. To rate the disorder separately would result in impermissible "pyramiding." As such, entitlement to separate disability ratings for the thoracic spine, lumbar spine and degenerative disc disease is denied. (CONTINUED ON NEXT PAGE) ORDER 1. An effective date prior to April 13, 2004, for the assignment of a 20 percent disability rating for service- connected chronic lumbosacral strain, is denied. 2. An effective date prior to August 21, 2006, for the assignment of a 40 percent disability rating for service- connected chronic thoracolumbar strain, also claimed as degenerative disc disease, is denied. 3. Entitlement to a separate disability rating for thoracic and lumbar spine disabilities is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs