Citation Nr: 0813710 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-36 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently rated at 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran had active military service from November 1971 to September 1975, from December 1976 to October 1978, and from October 1986 to October 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that denied a compensable rating for the veteran's degenerative disc disease of the lumbar spine. The claims file was subsequently transferred to the Portland, Oregon, RO. While the appeal was pending, in July 2007, the RO granted a 10 percent rating for the veteran's degenerative disc disease of the lumbar spine. In February 2008, the veteran appeared before the undersigned for a hearing. The transcript has been associated with the claims file. FINDING OF FACT The veteran's disability is not manifested by incapacitating episodes requiring bed rest prescribed by a physician, forward flexion is not limited to 60 degrees, combined range of motion is not limited to 120 degrees, nor does the veteran experience muscle spasms with extreme forward bending or otherwise. CONCLUSION OF LAW The criteria for a higher rating for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a. Diagnostic Codes 5004, 5242, 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code (DC), any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The veteran has been rated under Diagnostic Code (DC) 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). These ratings 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 General Formula provides a 20 percent disability rating for 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. A 40 percent disability rating is assigned for 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. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The veteran has had three VA exams since he filed his original claim in September 2004. The most recent VA exam, dated June 2007, shows that the veteran complained of back symptoms in relation to bending, sudden movements, sitting and standing. The pain was limited to the lumbosacral area, with periods of flare-up. At that time, his last flare-up had been in January 2007 and caused him to take bed rest for approximately 3 days. Since separation from service, the veteran has worked in the sheriff's office doing sedentary work. He has pain at work but he manages to deal with it. Flare-ups cause him to miss work for 3 to 4 days. The veteran has pain with repeated bending. He is able to rise from a chair and walk back and forth across a room and walk on toes and heels without problems. The Trendelenburg, Lasegue, and Babinski tests were all negative. Flexion was 70 degrees, lateral flexion was 20 degrees bilaterally, rotation was 25 degrees bilaterally, and extension was 20 degrees. All motions, though slightly stiff, were essentially without pain. Lateral motion and flexion, on repetition, did not cause decrease in range of motion. Such medical findings provide evidence against this claim. For treatment, the veteran was using his orthosis intermittently and was taking occasional, intermittent ibuprofen. The diagnosis was degenerative disc disease. During the April 2005 VA exam, the veteran indicated that he had been having low back pain every other month lasting 3 to 4 days, which he described as flare-ups. Average discomfort during those times was 8/10. He also described pain radiating down his left lower extremity. On examination, there was no heat, tenderness to palpation, or complaint of pain. Flexion measured at 90 degrees, extension at 25 degrees, lateral flexion right at 20 degrees and left at 25 degrees, with right rotation at 35 degrees and left at 45 degrees. There was no complaint of pain or limitation of motion with repetition. The examiner indicated that functional impairment was slight to moderate with no fatiguability or incoordination and with minimal weakness. The major functional impact was the complaint of pain. Again, these results would not indicate that a higher evaluation is warranted. The VA exam of August 2004 indicates that the veteran had pain weekly, and each flare-up lasted 2 days. The veteran described the pain as aching and sharp in nature. His pain was at a level of 8, and could be elicited by physical activity and relieved by rest and stretching. He indicated that on occasion his leg would stop functioning normally. He indicated incapacitating episodes as often as twice per year, lasting 3 days each incident. In the past 12 months, the veteran had no incapacitating episodes. On examination there was no radiating pain on movement or muscle spasm or tenderness. Flexion measured at 90 degrees, extension at 30 degrees, and bilateral lateral flexion at 30 degrees, with bilateral rotation at 30 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or coordination. No ankylosis was present, and no signs of intervertebral disc syndrome were present. He was diagnosed with degenerative disc disease, with chronic low back pain. Once again, the results do not indicate that the veteran's disability meets the criteria for a 20 percent evaluation, providing evidence against this claim. In addition to the VA exams, the veteran provided written statements describing his low back disability. The most recent statement, received in November 2005, indicates that the veteran was having severe episodes of low back pain that caused functional impairment. His flare-ups, at their worst, consisted of extreme pressure and pain in the low back, resulting in an inability to participate in normal activities such as sitting. He stated that the episodes occurred every other month, followed by 3 weeks of stiffness and aching. A flare-up in September 2005 required 3 days of bedrest followed by 8 days of pain. At his hearing before the undersigned in February 2008, the veteran testified that in January 2008 he was bedridden for 4 to 5 days, followed by 8 days of severe pain. He indicated that he is incapacitated approximately 8-10 weeks per year. At times, certain movements cause severe pain to radiate down his left leg and can cause temporary paralysis, or an inability to walk, leaving the veteran bedridden. The veteran testified that the pain is constant and he has to be aware of every movement he makes to keep from triggering an episode, or flare-up. He indicated that the pain causes inflammation, and that swelling is present during his flare- ups. He further indicated that he was sensitive to touch. The veteran testified that his January 2008 flare-up was the longest lasting flare-up that he has had. He did not seek VA treatment because the facility is a 2.5 hour drive from his house, and during flare-ups, he is unable to drive or sit. He also indicated that the VA did nothing more than take x- rays, prescribe Ibuprofen, and recommend bedrest. He stated that he preferred to self treat flare-ups with Ibuprofen and exercise. The veteran further stated that the pain has limited his activities, such as airplane travel since he must walk around every 15-20 minutes. He has no problems walking, but suffers pain while sitting, driving, twisting, and laying down. Driving is limited to 30 minute stretches. When lying down, the veteran must watch his positioning and movements to avoid triggering a flare-up. Each month the veteran has about 4 bad days. The first day of a flare-up generally requires him to lie down because of severe pain. The Board has considered the veteran's statements. However, as noted above, a 20 percent disability rating is assigned for 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. The evidence shows the veteran's spine is not ankylosed and his range of motion is far greater than the limitations required for a rating in excess of 10 percent, even with consideration of his pain. Therefore, the veteran is not entitled to an increased rating based upon the General Formula under DC 5242. The Board has also considered the DC 5243 and "incapacitating episodes". Though the veteran has testified that he has been incapacitated and bedridden for 8 to 10 weeks in the last year, the evidence does not show that bedrest was prescribed or that he was treated by a physician. Therefore, an increased rating is not warranted under DC 5243. As indicated above, in addition to the criteria listed at DC 5242 and 5243, the Board must also consider whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA exams show that the veteran has range of motion far greater than is required for an increased rating; however, the veteran reported severe low back pain, flare-ups, and incapacitation totalling 8-10 weeks in the past 12 months. The June 2007 examiner indicated that the veteran had pain with repeated bending at the waist, but that during range of motion testing, the veteran's movements were essentially without pain. The veteran was able to rise from a chair and walk back and forth across a room and walk on toes and heels without problems. Also, there was no additional limitation of range of motion upon repetitive movements, providing highly probative evidence against this claim. The April 2005 examiner indicated no heat, tenderness to palpation, or complaint of pain. The veteran had no additional limitation or pain with repetitive motion. The examiner indicated that functional impairment was slight to moderate, with no fatiguability, incoordination, and minimal weakness. The major functional impact was the complaint of pain. The findings of the VA examiner in August 2004 were similar. The Board recognizes the veteran's complaints; however, it is important for the veteran to understand that without consideration of pain the current evaluation could not be justified, let alone an increased evaluation. Simply stated, the post-service medical records, including the VA examinations cited above, provide evidence against this claim, outweighing the statements of the veteran. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. The veteran's contention that he is entitled to a higher evaluation is outweighed by VA exams that clearly indicate that he does not meet the standards for a higher evaluation. Thus, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his degenerative disc disease of the lumbosacral spine. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claims for increase, that doctrine is not applicable in the instant appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). 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, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening 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 the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice 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-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. 37. Here, the duty to notify was not fully satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied by a letter dated August 2004 that fully addressed all four notice elements and another letter, subsequent to the initial RO decision, dated March 2006 that fully addressed the Vazquez- Flores criteria. The August 2004 letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The March 2006 letter addressed the disability ratings and effective dates, and informed the veteran of the types of evidence that could be submitted to support an increased ratings claim. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a rating decision issued in July 2007, after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (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. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, rebutting any presumption of prejudice. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA 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. § 5103A; 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 treatment records. The veteran submitted supporting lay statements and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The veteran was afforded VA medical examinations in August 2004, April 2005, and June 2007. 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). ORDER Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs