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