Citation Nr: 0813609 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 03-32 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation for lumbar scoliosis with degenerative changes, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for degenerative changes of the cervical spine at C 3-4 and C 4-5, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from June 1969 through September 1992, with subsequent National Guard service until 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes that the issues of entitlement to service connection for hearing loss and for tinnitus were remanded for issuance of a Statement of the Case (SOC) in December 2006. The SOC was issued in September 2007, but the appeals were not perfected with a VA Form 9 substantive appeal. As such, those issues are not before the Board at this time. FINDINGS OF FACT 1. The competent medical evidence does not show that the veteran's service-connected lumbar spine disability was manifested by severe intervertebral disc syndrome, incapacitating episodes of intervertebral disc syndrome, or unfavorable ankylosis at any time during the course of this appeal. 2. The competent medical evidences does not show that the veteran's service-connected cervical spine disability was manifested by severe intervertebral disc syndrome, incapacitating episodes of intervertebral disc syndrome, or unfavorable ankylosis at any time during the course of this appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the veteran's lumbar scoliosis with degenerative changes are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. § 4.40, 4.59, 4.71a, Diagnostic Code 5292 (2002). 2. The criteria for a rating in excess of 30 percent for the veteran's degenerative changes of the cervical spine at C 3-4 and C 4-5 are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. § 4.40, 4.59, 4.71a, Diagnostic Code 5290 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking increased ratings for his service- connected lumbar spine and cervical spine disabilities. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which sets forth separate rating codes for various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Generally, a disability must be considered in the context of the whole recorded history. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. §§ 4.1, 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). In this case, the veteran was originally service connected for lumbar scoliosis with degenerative changes in June 1993. The RO awarded a 10 percent rating under diagnostic code (DC) 5003. Under 38 C.F.R. § 4.71a, DC 5003, x-ray findings of degenerative arthritis will be rated based upon limitation of motion of the affected part, unless such is noncompensable, at which time 5003 allows a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. This is how the veteran was rated in June 1993. It was not until the October 1997 rating decision that the veteran's lumbar spine disability was increased based upon limitation of motion. The lumbar spine disability was then increased to 20 percent under DC 5292. In May 1994, degenerative changes of the cervical spine were service connected at a rate of 20 percent under DC 5290. The veteran filed this claim for an increase for both disabilities in February 2002. The June 2002 rating decision, at issue in this appeal, increased the lumbar spine disability to 40 percent under DC 5292, and the cervical spine disability to 30 percent under DC 5290. During the pendency of this appeal, regulatory changes have twice amended the rating criteria for evaluating spine disabilities. The first change affected only the rating criteria for intervertebral disc syndrome. See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002). This amendment was effective September 23, 2002. Id. The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, were again revised effective September 26, 2003. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003); 69 Fed. Reg. 32449-32450 (June 10, 2004). Where a law or regulation (particularly those pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations).The changes pertinent to the relevant diagnostic codes in this case are summarized, below. Under the old regulations, in effect prior to September 26, 2003, Diagnostic Codes 5290 and 5292 provided ratings based on limitation of motion of the cervical and lumbar spines, respectively. The veteran is currently receiving the maximum rating under these old regulations for his cervical and lumbar spine disabilities. An increase under the old regulations for intervertebral disc syndrome would be available to the veteran if the medical evidence established that he had severe intervertebral disc syndrome with recurring attacks with intermittent relief, which would warrant a 40 percent rating, or with pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief, which would be rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5293 (2002). The amended version of DC 5293, in effect from September 23, 2002 through September 25, 2003, provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. A 40 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating intervertebral disc syndrome. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provide that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a. Effective September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), spondylolisthesis or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242) (for degenerative arthritis of the spine, see also Diagnostic Code 5003). The General Rating Formula for Diseases and Injuries of the Spine provides the following ratings in excess of 30 percent for the cervical spine and in excess of 40 percent for the lumbar spine: a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 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 entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. In particular, Note (5) provides that, 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 vision; 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. To summarize, for an increase in the veteran's cervical and lumbar spine disabilities, the medical evidence must show severe or incapacitating episodes of intervertebral disc syndrome, or ankylosis of the cervical or lumbar spine. A review of the evidence of record does not reveal either. A May 2002 VA examination report documents the veteran's complaints of stiffness and pain in the cervical spine, and the same in the lumbar spine with difficulty standing in one position for more than five minutes. Physical examination revealed pain on motion in the neck and low back, but there was no suggestion of bulging discs or of any sort of ankylosis. The diagnosis was lumbar scoliosis with degenerative joint disease and cervical spine degenerative disc disease. There was no indication in this report that an increase is warranted under any of the relevant rating criteria for either of the veteran's disabilities. A September 2002 private MRI report shows mild posterior disc bulging with osteophytic vertebral endplate spurring at C5- C6, but there was no indication in the record at that time of incapacitating episodes of intervertebral disc disease such that a rating under those rating criteria are warranted. The Board notes that treatment during this time period was secondary to a work-related back injury. A September 2002 private report indicates that, by that time, the work injury was resolved and the veteran had reached maximum medical improvement for that injury. As such, the Board recognizes the current symptoms, discussed below, as those related to the veteran's service connected disabilities. In a February 2003 VA spine examination, the veteran again complained of pain in both the neck and back and severe stiffness in the neck. Range of motion was measured, and while pain was noted with motion, there was no indication of ankylosed cervical or lumbar spines. The February 2003 report does discuss radiologic evidence of disc bulging at C5-C6, and at L4-L5, with arthrosis at L3-L4, L5-S1, and disc desiccation of the L3-L4. The examiner diagnosed cervical spine osteophytes, arthrosis with disc bulging, and lumbosacral spine arthrosis with disc desiccation and small posterior disc central bulging. A March 2003 neurological examination report also notes that there is no clinical evidence of cervical or lumbar radiculopathy. Again, there is no indication of ankylosis of any sort at this time, and no mention of severe intervertebral disc syndrome or any incapacitating episodes of that disease to warrant an increase at that time. A January 2005 MRI of the lumbar spine revealed that the intervertebral discs are well hydrated and normal in vertical height and that there is no evidence of disc herniation. Again, this evidence does not support an increased rating. The veteran was most recently examined in February 2007. At that time, the veteran reported flare-ups of his back pain that impair him 100% for 3 to 4 days. The report does not suggest the frequency of these episodes. Physical examination again revealed limited and painful range of motion, but no indication of ankylosis of either the cervical or lumbar spine. Forward flexion of the cervical spin was from 0 to 45 degrees which is considered normal under 38 C.F.R 4.71a, Plate V. The report indicated that there were no incapacitating episodes during the last year. Lumbar scoliosis and degenerative changes of the lumbar spine was diagnosed, as well as degenerative changes of the cervical spine. These symptoms and diagnoses are consistent with those reported throughout the claims folder. At no time throughout the course of this appeal has the evidence shown that the veteran's service-connected cervical spine disability was manifested by severe intervertebral disc syndrome, incapacitating episodes of intervertebral disc syndrome, or unfavorable ankylosis of the entire cervical spine. As such, a rating in excess of 30 percent for the veteran's cervical spine disability is not warranted under either the old or new regulations. Likewise, the medical evidence fails to show that the veteran's lumbar spine disability is manifested by severe intervertebral disc syndrome, incapacitating episodes of intervertebral disc syndrome, or unfavorable ankylosis. Thus, a rating in excess of 40 percent for the veteran's lumbar spine disability is not warranted under either the old or new regulations. Accordingly, the veteran's claim for an increased rating for both his lumbar scoliosis with degenerative changes and his degenerative changes of the cervical spine at C 3-4 and C 4-5 must be denied. In reaching these conclusions, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the veteran contends his disability is essentially manifested by pain. However, the examinations of record discuss the levels of pain and do not discuss them manifesting to the levels of ankylosis or incapacitating in nature, and there is no other objective evidence to the contrary. For all of these reasons, the Board finds that a 40 percent rating adequately compensates the veteran for the current level of disability resulting from his lumbar spine disability, and a 30 percent rating for his cervical spine disability. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of his increased rating claim. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. The Court of Appeals for Veteran's Claims (Court) has recently issued a decision with regard to the notice required in increased evaluation claims. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The Court found that, at a minimum, adequate notice requires that VA notify the veteran that, to substantiate the claim: (1) the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life; (2) if the diagnostic code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability, and the effect of that worsening has on his employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the veteran; (3) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the December 2006 letter to the veteran does not contain the level of specificity set forth in Vazquez- Flores. However, the procedural defect does not constitute prejudicial error in this case, because there is evidence of actual knowledge on the part of the veteran, as well as other documentation in the claims file that reflects notification of what is needed to substantiate the claim, which a reasonable person could be expected to understand. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the Board is aware of the veteran's statements in the September 2005 hearing transcript and the several VA examination reports, in which a description was made as the effect of the service-connected disability on employability and daily life. In particular, the impact on the veteran's employment was discussed, as well as the fact that he has had trouble sleeping and working due to his service connected disabilities. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge satisfies the first and fourth requirements of Vazquez-Flores. Additionally, and particularly in light of the veteran's lay assertions of effects of the service-connected disability on employability and daily life, the Board does not view the disorder at issue to be covered by the second requirement of Vazquez-Flores, and no further analysis in that regard is necessary. Also, the December 2006 letter to the veteran specifically discusses all rating criteria utilized in the present case, and this criteria was set forth in further detail in the September 2007 Supplemental Statement of the Case. The veteran was accordingly made aware of the requirements for an increased evaluation pursuant to the applicable diagnostic criteria, and such action thus satisfies the third notification requirement of Vazquez-Flores. Finally, the December 2006 letter does informed the veteran of the type of evidence necessary to establish an effective date and a disability rating, as is required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the requirements of 38 C.F.R. § 3.159(b)(1) (2007), Vazquez-Flores, and Dingess are all met, satisfying VA's duty to notify the veteran. VA also has a duty to assist the veteran in substantiating his claim under 38 C.F.R. § 3.159(c), (d) (2007). Here, the veteran's statements, his service medical records, and VA and private treatment records have been associated with the claims folder. The veteran was afforded a Board hearing, and an RO hearing, and both transcripts are of record. He was also afforded several VA examinations and the reports are associated with the claims folder. The veteran has not notified VA of any additional available relevant records with regard to his claims. VA has done everything reasonably possible to assist the veteran. A remand for further development of these claims would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to a rating in excess of 40 percent for lumbar scoliosis with degenerative changes is denied. Entitlement to a rating in excess of 30 percent for degenerative changes of the cervical spine at C 3-4 and C 4-5 is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs