Citation Nr: 0813677 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-26 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for the service-connected headaches. 2. Entitlement to an evaluation in excess of 30 percent for the service-connected post-operative residuals of pelvic adhesive disease. 3. Entitlement to an evaluation in excess of 20 percent prior to November 16, 2006 and in excess of 10 percent beginning November 16, 2006 for the service-connected degenerative disc disease (DDD) of the thoracic spine. 4. Entitlement to an evaluation in excess of 10 percent prior to November 16, 2006 and in excess of 20 percent beginning on November 16, 2006 for the service-connected mechanical low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from August 1994 to September 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the RO. An October 2002 rating decision granted service connection for DDD of the thoracic spine, as 20 percent disabling; for mechanical low back pain, as 10 percent disabling; for the post-operative residuals of pelvic disability, as 10 percent disabling; and for headaches, as noncompensably disabling. All of these ratings were effective on September 25, 2002. A December 2005 decision by a Decision Review Officer (DRO) granted an increased evaluation of 30 percent for service- connected headaches, effective on December 10, 2003, the date of the claim for increase. A June 2007 decision by the DRO granted service connection for alopecia, claimed as hair loss and scalp deterioration, and for a history of ovarian cyst disease, and these issues are no longer part of the veteran's appeal. The June 2007 decision also assigned an increased evaluation of 50 percent for service-connected headaches and an increased evaluation of 30 percent for service-connected pelvic disability, both of which were made effective on December 10, 2003. This decision by the DRO also reduced the 20 percent evaluation for service-connected DDD of the thoracic spine to 10 percent and increased the 10 percent evaluation for service-connected mechanical low back pain to 20 percent; both of these changes were made effective on November 16, 2006. In a rating decision of November 2007, the RO denied the veteran's claim for a total compensation rating based on individual unemployability. This matter at this time is referred back to the RO for appropriate action. FINDINGS OF FACT 1. The service-connected headaches is not shown to be manifested by a disability picture productive of more than very frequent completely prostrating or prolonged attacks productive of severe economic inadaptability. 2. The service-connected post-operative residuals of pelvic adhesive disease is shown to be manifested by complaints of pelvic pain, severe menstrual cramps and vaginal discharge, but related bowel or bladder dysfunction is not demonstrated. 3. The service-connected thoracic spine DDD is not shown to be productive of a disability picture manifested by intervertebral disc syndrome with more than incapacitating episodes that last at least one week, but less than two weeks for the period since the date of receipt of the claim for increase in December 2003. 4. The service-connected thoracolumbar spine disability is not shown to be productive of a functional limitation of flexion to less than 30 degrees or to equate with favorable ankylosis of the entire thoracolumbar spine during the period after the date of receipt of the claim for increase in December 2003. 5. The service-connected mechanical low back pain is shown to have been productive of a disability picture that more nearly approximated that of limitation of forward flexion of the thoracolumbar spine to not greater than 60 degrees or symptoms of muscle spasm, guarding or localized tenderness resulting in abnormal gait or abnormal spinal contour for the period after the date of receipt of the claim for increase in December 2003. CONCLUSIONS OF LAW 1. The claim for the assignment of a rating in excess of 50 percent for the service-connected headaches must be denied by operation of law. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a including Diagnostic Codes 8199-8100 (2007). 2. The criteria for the assignment of a rating in excess of 30 percent for the service-connected post-operative residuals of pelvic adhesive disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.116 including Diagnostic Codes 7699-7629 (2007). 3. The claim for a separate rating in excess of 20 percent for the service-connected DDD of the thoracic spine prior to November 16, 2006 or in excess of 10 percent beginning on November 16, 2006 must be dismissed under the law. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Code 5242 (2007). 4. The criteria for the assignment of a rating a 20 percent for service-connected mechanical low back pain for the period from the date of receipt of the claim for increase in December 2003 are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Code 5237 (2007). 5. The criteria for the assignment of a rating in excess of 20 percent for the service-connected mechanical low back pain on the basis of thoracolumbar disability are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2006). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. In February 2004 and August 2006, the RO sent the veteran a letter in which she was informed of the requirements needed to establish entitlement to an increased rating. In accordance with the requirements of VCAA, the letters informed the veteran what evidence and information she was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims files after the February 2004 letter. In these letters, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in her possession that pertains to a claim. The Board notes that the veteran was informed in the August 2006 letter about disability ratings and effective dates in the event that any of her claims was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also told in the August 2006 letter that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159. Relevant VA examinations have also been conducted, including in February 2004 and November 2006. The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on each issue. The veteran has been given ample opportunity to present evidence and argument in support of her claims, including at her September 2006 RO hearing. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Increased Rating Claims Law And Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue, which is the situation with respect to the increased rating issue currently on appeal, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45 (2007); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Headaches Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a 50 percent evaluation is assignable for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent evaluation contemplates migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; a 10 percent evaluation is warranted in cases of migraines with characteristic prostrating attacks averaging one in two months over the last several months; and a noncompensable evaluation is assigned with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2006). Analysis The veteran is currently assigned a 50 percent evaluation for her service-connected headaches under Diagnostic Code 8100. This is the highest evaluation established under the regulations for rating migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Absent specific assertions claiming increased disablement or presenting an unusual or exceptional disability picture referable to the service-connected headaches, the Board finds no basis in this record for the assignment of a rating higher than 50 percent for the service-connected headaches under controlling regulations. Pelvic Disability Schedular Criteria The veteran is currently assigned a 30 percent evaluation for service-connected pelvic disability under Diagnostic Codes 7699-7629. A designation of Diagnostic Code 7699 reflects that the disability is a condition not specifically listed in the Rating Schedule, and hyphenation with 7629 indicates that the disability has been rated as analogous to endometriosis. See 38 C.F.R. §§ 4.20, 4.27 (2007). Diagnostic Code 7629 provides that endometriosis is to be evaluated as 10 percent disabling where there is pelvic pain or heavy or irregular bleeding, requiring continuous treatment for control. A 30 percent rating is warranted when there is pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent rating is warranted when there are lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Analysis To warrant a rating in excess of the current 30 percent, there would need to be evidence not only of pelvic pain or heavy or irregular bleeding not controlled by treatment, but there would also need to be evidence of bowel or bladder symptoms. In this case, on recent examination, the veteran complained of having pelvic pain, severe menstrual cramps and frequent vaginal discharge, but she was noted to have a regular menstrual cycle. There is no medical evidence suggesting that she is experiencing related bowel or bladder symptoms, except for some urgency due to stress incontinence. As such, the service-connected disability picture is not show meet the criteria for a rating in excess of 30 percent for service-connected assignable for the service-connected post- operative residuals of pelvic adhesive disease. Thoracic and Lumbar Spine Disabilities Certain regulatory changes amended the rating criteria for evaluating intervertebral disc syndrome and became effective on September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (2002). Effective on September 26, 2003, VA further revised the criteria for diagnosing and evaluating the spine. See 68 Fed. Reg. 51454-51458 (2003). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code 5292 for limitation of motion of the lumbar spine, effective prior to September 26, 2003, a 10 percent evaluation was assigned for slight, a 20 percent evaluation for moderate, and a 40 percent evaluation for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1993). Prior to September 23, 2002, intervertebral disc syndrome was evaluated under 38 C.F.R. Section 4.71a, Diagnostic Code 5293. Under this diagnostic code, a 60 percent evaluation is assigned when there is evidence of pronounced disability with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and little intermittent relief; a 40 percent evaluation is assigned when there is severe disability with recurrent attacks and only intermittent relief; a 20 percent evaluation is assigned when there is moderate disability with recurring attacks; a 10 percent evaluation is assigned when there is mild disability; and a noncompensable evaluation is assigned for postoperative intervertebral disc syndrome that is cured. According to 38 C.F.R. Section 4.71a, Diagnostic Code 5293, effective on September 23, 2002, a 60 percent evaluation may be assigned when there is evidence of intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past twelve months; a 40 percent evaluation is assigned when the incapacitating symptom episodes last at least four weeks, but less than six weeks. A 20 percent evaluation may be assigned when there is evidence of intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past twelve months; a 10 percent evaluation is assigned when the incapacitating symptom episodes last at least one week, but less than two weeks, during the past twelve months. This remained essentially unchanged in the revisions effective on September 26, 2003. Prior to September 26, 2003, a 10 percent evaluation was warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation was for assignment with muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in standing position. For severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a 40 percent evaluation was assigned. 38 C.F.R. § 4.71a including Diagnostic Code 5295 (2002). Under the revised rating criteria for the spine beginning on September 26, 2003, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine; a 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the thoracolumbar spine. A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or with 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2007). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 45 degrees, bilateral rotation is 0 to 30 degrees, and lateral flexion to either side is zero to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2) (2006); see also 38 C.F.R. § 4.71a, Plate V (2007). The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2) (2007). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. The notes to the revised rating criteria for low back disabilities state that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1) (2006). Each range of motion measurement is rounded to the nearest five degrees. Id. at Note (4) (2006). Arthritis, due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5003 (2007). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings, is rated on the basis of the limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent evaluation is assigned when there is x-ray evidence of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Analysis In an October 2002 decision, the veteran was initially service connected for mechanical low back pain and DDD of the thoracic spine and assigned separate compensable evaluations effective on September 29, 2002 under the provisions of an older version of the rating criteria that had been revised on September 23, 2002. The veteran later applied for increased compensation for her service-connected disability in December 2003, after the effective date of another version of the criteria for rating disability of the spine. As noted, the subsequent June 2007 rating decision adjusted the 20 percent evaluation for the service-connected DDD of the thoracic spine to 10 percent and the 10 percent evaluation for service-connected mechanical low back pain to 20 percent, effective on November 16, 2006. Under the rating criteria in effect since September 26, 2003, a single rating is to be provided for disability of the thoracolumbar spine based on either loss of motion or, as in the case of intervertebral disc syndrome, on the basis of incapacitating episodes. To warrant a rating in excess of 20 percent for disability manifested by limitation of motion of the thoracolumbar spine, there would need to be a limitation of forward flexion to less than 30 degrees or a finding of favorable ankylosis of the entire thoracolumbar spine. Although there is a notation in treatment records dated in November 2005 that active motion of the thoracic spine was 0 degrees, flexion of the veteran's low back at that time was to noted to be to 80 degrees. However, there was mild muscle spasm noted with an accentuated lordosis of the lumbar spine and a guarded, hesitant gait. Her flexion was noted to be no greater than 60 degrees when examined in February 2004. Given these findings and the unusual circumstances of this case, the Board finds that the service-connected mechanical low back pain is shown to have more nearly approximated the criteria for the assignment of a 20 percent rating for thoracolumbar disability since the date of the receipt of the veteran's claim for increase in December 2003. Significantly, the VA examination in November 2006 also noted that there were no incapacitating episodes due to thoracolumbar disability during the previous year. Forward flexion was noted to be to 90 degrees, On this record, there is no basis for the assignment of a rating in excess of 20 percent for the overall service- connected thoracolumbar disability in accordance with these current rating criteria. See 38 C.F.R. § 4.31 (2007). Without addressing the propriety of the recent adjustments in the ratings assigned in this case, the Board now finds that a separate, compensable evaluation is not assignable for the service-connected DDD of the thoracic spine on the basis of intervertebral disc syndrome under the regulations in effect since September 23, 2002. The Board in this regard has no jurisdiction to review the claim for increase other than to address whether a rating higher than 20 percent could be applied for the service- connected thoracolumbar disability for the period beginning on and after September 26, 2003 when the applicable regulations were revised for the last time. Finally, the Board notes that an evaluation higher than 20 percent is not warranted for the service-connected thoracolumbar disability based on functional impairment. Deluca v. Brown, 8 Vet. App. 202 (1995). The service-connected thoracolumbar spine disability on recent VA examinations was shown to be manifested by at least 30 degrees or greater of flexion, and the VA examination in November 2006 reported a lack of additional functional impairment after repetitive use. See 38 C.F.R. §§ 4.40, 4.45 (2005); see also Deluca v. Brown, 8 Vet. App. 202 (1995). ORDER The claim for an increased evaluation in excess of 50 percent for the service-connected headaches is denied. An increased evaluation in excess of 30 percent for the service-connected pelvic disability is denied. The claim for an increased evaluation in excess of 20 percent prior to November 16, 2006 or in excess of 10 percent beginning on November 16, 2006 for service-connected DDD of the thoracic spine is dismissed. An increased evaluation of 20 percent for service-connected mechanical low back pain for the period since the date of receipt of the claim for increase in December 2003 is granted, subject to the regulations controlling the payment of VA monetary benefits. . An increased evaluation in excess of 20 percent for the service-connected thoracolumbar disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs