Citation Nr: 0813291 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-15 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent for chronic low back pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bobby Mullins, Associate Counsel INTRODUCTION The veteran had unverified active service from May 1978 to September 1978, and verified active service from September 1990 to May 1991, and from July 1991 to April 1992, and from February 2003 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. The case file was transferred to Montgomery, AL in October 2004 for jurisdictional purposes. FINDING OF FACT The veteran's service-connected chronic low back pain is manifested by a combined range of motion of 215 degrees with some pain; there is no radiation of pain into the lower extremities, no history of incapacitating episodes, no impaired gait or diminished ability to stand erect, and no diagnosis of any neurologic disorder. CONCLUSION OF LAW No criteria for a rating in excess of 10 percent for chronic pain of the lumbosacral spine have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.2, 4.7, Diagnostic Code 5239 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. 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 April 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 he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. In Mayfield v. Nicholson, the United States Court of Appeals for the Federal Circuit concluded that the applicable statute and regulations require that the claimant be given the required information prior to the VA's decision on the claim and in a form that enables the claimant to understand the process, the information that is needed, and who will be responsible for obtaining that information. 444 F.3d 1328 (Fed. Cir. 2006). The record shows that the veteran was provided notice regarding what evidence would warrant a higher rating in a May 2005 SOC, after the initial adjudication of his claim in the October 2004 rating decision. A supplemental statement of the case (SSOC) was then issued in February 2007. Because the claim was readjudicated after adequate notice was received, the requirements of the Mayfield decision are met. Id. at 1334. Moreover, the veteran and his representative demonstrated actual knowledge of what was needed to support his claim as reflected in their statements and correspondence. Specifically, the May 2007 statement provided by the veteran's representative stated that the veteran had greater impairment than he was currently rated at, with specific reference to the ranges of motion relevant to the Diagnostic Code in assigning a disability rating. 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. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103(a); 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 RO has obtained VA service records and VA medical records for this veteran. The veteran submitted private medical documentation in support of his claim, and submitted statements in support of his claim. The veteran was also afforded VA medical examinations in October 2002, April 2004, and December 2006. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran 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). Laws and regulations for increased rating of spinal conditions Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2007). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v Brown, 7 Vet. App. 55 (1994). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2007). As regards 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; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (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 (2007). The general rating formula for diseases and injuries of the spine are as follows, 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: Unfavorable ankylosis of the entire spine will be rated as 100 percent disabling; Unfavorable ankylosis of the entire thoracolumbar spine will be rated as 50 percent disabling; Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine will be rated as 40 percent disabling; 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 not greater than 120 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 will be rated as 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 will be rated as 10 percent disabling. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of visions; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). Entitlement to a disability rating in excess of 10 percent for chronic lower back pain The veteran was originally granted service connection for his lower back pain in a January 1995 rating decision at a noncompensable evaluation. This evaluation was increased to 10 percent in a March 2003 rating decision. The Board notes that the early March 2003 rating decision became final before the veteran submitted the claim on appeal in late March 2004. In an April 2004 VA medical examination, the veteran's forward flexion was measured to 20 degrees, extension was measured to 5 degrees, left and right lateral flexion were measured to 10 degrees, and left and right lateral rotation were measured to 20 degrees. The veteran had a combined thoracolumbar range of motion of 85 degrees. No periods of incapacitation were noted, and there were no signs or symptoms to indicate significant lumbar disc disease. The examiner noted that he did not feel these measurements were the result of the veteran's maximum efforts. He based this opinion on the fact that the veteran was extending and flexing to a greater degree when getting in and out of a chair during the examination. Additionally, the examiner compared the veteran's current x-ray results to a prior VA examination in October 2002, and found the veteran's lower back condition to be unchanged. Moreover, the veteran reported that he had not sought medical attention for his back in the year prior to the December 2006 VA examination. As such, the examiner concluded these numbers were likely not an accurate description. A comparison of the 2004 examination and the December 2006 VA examination confirms the examiner's opinion. The Board appreciates that in a June 2003 neuropsychological evaluation, the veteran was observed losing focus and struggling to answer questions, as he was not able to fully comprehend all the directions and questions presented to him during the examination. Subsequently, the veteran was diagnosed with dementia NOS, probable Alzheimer's type in a September 2003 military neurological examination. The Board notes that this diagnosis would explain variations in the veteran's ability to comprehend and follow directions and cooperate fully with the VA examiners. In a December 2006 VA medical examination, the veteran's forward flexion was measured to 80 degrees, extension was measured to 30 degrees, left lateral bending was measured to 20 degrees and right lateral bending was measured to 25 degrees, and left and right lateral rotation were measured to 30 degrees. The veteran had a combined range of motion of 215 degrees - a significant variation from the 2004 results. The examiner also noted that the veteran had no additional limitation of motion. He was ambulatory without a cane or a brace and was able to stand erect. His reflexes and sensations were intact. He reported that there were no incapacitating episodes and did not seek any medical attention related to his lower back in the previous year. It is important to stress that the examiner from the December 2006 VA examination did not mention a lack of cooperation or effort on the part of the veteran. In contrast, the examiner stated that the veteran seemed to understand the recommendations being made by him. Therefore, the Board finds the 2006 VA examination results to be more credible, since the veteran appears to have had greater understanding of what was happening at the time of the examination. The veteran is currently rated at 10 percent, and the next available level is 20 percent. For a 20 percent evaluation, evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined thoracolumbar spinal motion not greater than 120 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 must be shown. No such evidence exists in this case, and as such, a disability evaluation in excess of 10 percent is not warranted. The examiner from the December 2006 VA examination noted forward flexion of 80 degrees, a combined thoracolumbar range of motion of 215 degrees, and the veteran was independent and ambulatory without the use of a cane or brace. The criteria for rating spine disabilities provide for separate rating of associated objective neurologic abnormalities. Here, although the veteran was tested for associated objective neurologic abnormalities, none were found. Specifically, no focal strength deficits were found, and the reflexes and sensation of the lower extremities were found to be intact. Thus, no additional rating is warranted for associated objective neurologic abnormalities. While the veteran may feel that his service-connected back disability warrants a higher evaluation, the findings of the trained medical personnel in this case are more probative in determining if the criteria for a higher rating have been met. In this case, the objective findings by competent medical personnel provide a preponderance of evidence which establishes that the disability does not approximate any applicable criteria for an increased or additional rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board has considered whether any other Diagnostic code is available which would warrant an increased evaluation. The Board has determined there are none. There has been no diagnosis of a neurologic disorder or intervertebral syndrome. Therefore, alternative Diagnostic codes would not provide a more favorable decision for the veteran. As a final note, in view of the passage of time since the veteran claimed an increased rating, the Board has considered the issues raised by the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether staged ratings should be assigned. As discussed in detail above, we conclude that the service-connected lumbar spine injury residuals have not, at any time during the pendency of the claim, met any applicable criteria for a higher or additional rating, and as such, staged ratings are not warranted. ORDER Entitlement to a disability rating in excess of 10 percent for chronic low pack pain is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs