Citation Nr: 0813199 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-26 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the lumbar spine. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from May 1988 to July 1988 and September 1988 to December 1999, including service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. FINDINGS OF FACT 1. The veteran's low back disability is manifested by pain with palpation, spasms to the paraspinal muscles, and normal range of motion, but no functional loss due to pain, weakness, or fatiguability; intervertebral disc syndrome with incapacitating episodes or neurological impairment have not been shown. 2. The veteran received a recommendation for award for, among other things, identifying individuals attempting a breach of the perimeter wire, placing early warning devices in an area surrounded by mine fields, his duties as a pointman while conducting bunker reconnaissance in an area with unexploded ordinance, and his duties as a gunner during weapons and ammunition escorts. 3. The veteran has a diagnosis of PTSD related to in-service stressors. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for traumatic arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5237, 5242, 5243 (2007). 2. PTSD was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for a Low Back Disability Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be 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. When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2007); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. In the present case, the veteran's back disability has been rated under DC 5242, which contemplates degenerative arthritis of the spine (DC 5003). In order for the veteran to receive a rating higher than 10 percent for his lumbar spine disability, the evidence must show any of the following: * with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; * combined range of motion of the thoracolumbar spine not greater than 120 degrees; * muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; * separately rating associated objective neurological abnormalities under Note (1); * with intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; or * with intervertebral disc syndrome by combining separate evaluations for chronic orthopedic and neurological manifestations. An MRI of the lumber spine performed in July 2004 showed a moderate sized slightly left sided disc protrusion at the L5/S1 level. The veteran underwent a VA examination of the spine in September 2004. He reported that his back pain was chronic and located in the low back. He did not report radiation but described the pain as an ache that was 6/10 on the pain scale. He claimed to have occasional flare-ups after certain activities where he lost at least 50% range of motion. Yet, he did not report any incapacitating episodes in the past year. He stated that he took 1,000 to 1,500 milligrams of Tylenol each day to manage pain. He did not have any bowel or bladder complaints secondary to back pain. He walked unaided. On examination, the veteran's spine was straight and he had pain with palpation in the lumbar spine area and spasms to the paraspinal muscles on the right in the lumbar area. Active flexion was 0 to 90 degrees with pain at 90 degrees, extension to 35 degrees, active lateral flexion was 0 to 40 degrees with pain on the left at 40 degrees, and active rotation was 0 to 35 degrees with pain on the left at 35 degrees. He was able to do three repetitive rotations of the lumbar spine but stopped after thee due to increased pain. There was no evidence of decreased range of motion or weakness. The veteran could do a full squat to the floor, walk on his heels and toes, and stand on each leg independently. Strength in the lower extremity was 5/5. The VA examiner noted his review of the claims file and diagnosed the veteran with traumatic arthritis of the lumbar spine. The medical evidence does not demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (range of motion was 0 to 90 degrees), combined range of motion of the thoracolumbar spine not greater than 120 degrees (total was 210 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 (gait was normal). Next, treatment records show that the veteran has complained of chronic pain and intermittent tingling in his legs if he sat for more than 30 minutes. Yet, physical examination has not demonstrated any neurological impairment or sensory deficits. In September 2004, his dorsalis pedis pulses were 4/4 and equal, had good sensation to painful and vibratory stimuli in the lower extremities, and reflexes to patella and Achilles were 2+. Thus, he is not entitled to an increased rating for his low back disability based upon consideration of any neurologic residuals. Further, consideration has been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45. However, the evidence does not show that the veteran has functional loss due to pain, weakened movement, excess fatigability, or incoordination. Although he has reported competent evidence of pain upon repetition, he has not established how that pain functionally limits him to a specific degree. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Moreover, the evidence shows that he has normal range of motion in his back and the ability to do a full squat to the floor, walk on his heels and toes, and stand on each leg independently. Since limitation of motion is compensable under DC 5242, the veteran is not entitled to a rating under DC 5003. Similarly, the evidence does not show that he has vertebral fracture or dislocation, sacroiliac injury and weakness, spinal stenosis, spondylolisthesis or segmental instability, ankylosing spondylitis, or spinal fusion. Thus, DCs 5235- 5241 are inapplicable. In addition, the evidence does not support a higher rating based on intervertebral disc syndrome. During the September 2004 VA examination, the veteran reported that he had not had any incapacitating episodes as a result of his lumbar spine disability in the past 12 months. Moreover, the evidence does not show that he has ever required bedrest prescribed by a physician for a period of acute signs and symptoms due to intervertebral disc syndrome, the defining criteria for a higher rating under DC 5243. Accordingly, a higher rating for intervertebral disc syndrome is not warranted. The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected back disability. However, as compared to the rating criteria, a higher rating may not be granted. In sum, the weight of the credible evidence demonstrates that the veteran's traumatic arthritis of the lumbar spine warrants no more than a 10 percent rating during the entire period in question. As the preponderance of the evidence is against the claim for an increased rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If, however, the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283 (1994). The veteran's testimony alone cannot establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. 389 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). In the present case, the veteran was diagnosed with PTSD in a VA examination in September 2004. The examiner noted that the veteran "clearly" met DSM-IV criteria for PTSD and concluded that his trauma was related to service. The veteran does not contend and the evidence does not otherwise show that he engaged in actual combat with the enemy. Although his records show that he received several awards, none of them denote combat status. Accordingly, the Board finds that corroborating evidence of his alleged stressors is required to support his claim. Doran v. Brown, 6 Vet. App. 283 (1994). While the incidents in the veteran's PTSD questionnaire dated July 2004 have not been verified, he submitted a recommendation for award dated in September 1996. In it, he is recommended for an award based on four "achievements," including his identification of three individuals withdrawing from an attempted breach of the perimeter wire surrounding a checkpoint, proficiency in placing early warning devices around the outer perimeter in an area surrounded by mine fields, his duties as a pointman while conducting bunker reconnaissance in an area with an unknown amount of unexploded ordinance, and his duties as a gunner during weapons and ammunition escorts. The recommendation concluded that the veteran was determined to keep the platoon safe and alert while risking his own safety for the sake of others. The Board also notes that his MOS was infantryman. While the veteran's statements as to his participation in combat have not been directly confirmed, the Board finds that this evidence establishes sufficient verification of his alleged personal exposure to stressful events during military service. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Significantly, his report of stressors is consistent with the circumstances of his service in light of the recommendation for award referenced above. See 38 U.S.C.A. § 1154(a). Based on the evidence of the service department record, and given the current diagnosis of PTSD, which has been medically linked to military service, with stressors consistent with service, the Board finds that the evidence is sufficient to corroborate that the stressors actually occurred. In sum, the record shows a diagnosis of PTSD, medical evidence establishing a link between current symptoms and in- service stressors, and evidence consistent with in-service stressors. For those reasons, service connection for PTSD is granted. 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). With respect to the claim for an increased rating, § 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. Id. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in July 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. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. The Board acknowledges that the VCAA letter sent to the veteran in July 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, he was provided with a statement of the case in July 2005 which outlined the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. Based on the evidence above, the veteran can be expected to understand what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, in a September 2004 VA examination he reported to the examiner how his disability affected his daily life, including grocery shopping and his employment and school attendance. 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, 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). In this case, service medical records and all identified and authorized post-service medical records relevant to the issue on appeal have been requested or obtained. Next, a specific VA medical examination was undertaken in September 2004, including a report of an MRI. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law with respect to the claim for an increased rating. With respect to the claim for PTSD, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. ORDER An evaluation in excess of 10 percent for traumatic arthritis of the lumbar spine is denied. Service connection for PTSD is granted. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs