Citation Nr: 0813740 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-06 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for residuals of a lumbar spine injury with degenerative arthritis. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran had active service from December 1967 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a February 2006 substantive appeal (VA Form 9), the veteran requested a hearing before a Veterans Law Judge at the RO. The veteran failed to report for the hearing which was scheduled for September 2007. In correspondence received in September 2007, the veteran's representative stated that the veteran did not wish to reschedule the hearing and that the case was ready to be reviewed by the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to January 30, 2007, the veteran's residuals of a lumbar spine injury with degenerative arthritis, was manifested by no more than moderate limitation of motion and flexion is greater than 30 degrees. 2. As of January 30, 2007, the veteran's residuals of a lumbar spine injury with degenerative arthritis is limited to 30 degrees or less of forward flexion without evidence of ankylosis or neurologic impairment. CONCLUSIONS OF LAW 1. For the period prior to January 30, 2007, the criteria for a rating higher than 20 percent for residuals of a lumbar spine injury with degenerative arthritis have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, Diagnostic Code 5237 (2007). 2. As of January 30, 2007, the criteria for an evaluation of 40 percent, but no higher, for residuals of a lumbar spine injury with degenerative arthritis, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Proper VCAA notice 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 her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notice by a letter dated in September 2004. The notice included the type of evidence needed to substantiate the claim for an increased evaluation. The veteran was also informed that VA would obtain service records, VA records, and records from other Federal agencies, and that with his authorization VA would obtain private medical records on his behalf or he could submit the records. The veteran was informed of what evidence or information he was responsible for providing. Finally, the veteran was told to provide any evidence in his possession that pertained to the claim. VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for benefits, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, service connection had previously been granted, and the first three Dingess elements are substantiated. Further notice in this regard is not required. The veteran was provided with information pertaining to the establishment of effective dates and disability ratings in an April 2007 Supplemental Statement of the Case. The veteran's claim has not been readjudicated by the RO since the receipt of this notice, however, the veteran's representative submitted a statement in September 2007 regarding the degree of the veteran's lumbar spine disability. Therefore, the veteran had an opportunity for meaningful participation in the adjudication of his claim. There is no prejudice to the veteran from the delayed notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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. Id. 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 v. Peake, 22 Vet. App. 37 (2008) The September 2004 VCAA letter notified the veteran that medical or lay evidence could be submitted to substantiate his claim and provided specific examples. This information was provided to the veteran prior to the initial adjudication of his claim. The veteran's lumbar spine disability is not rated on the basis of laboratory findings. The lumbar spine grant in this decision is based on the functional limitations due to pain under 38 C.F.R. §§ 4.40 and 4.59, VA was not required to send information as to the specific measurements contained in the relevant rating codes. Finally, by the September 2007 letter, the Board notes that the veteran's representative has displayed actual knowledge of the fact that the veteran's disability will be evaluated based on its effects on both his daily life and employment. The veteran's representative also displayed knowledge of the symptomatology required for a higher evaluation for the lumbar spine disability. A notice error can be cured by actual knowledge of the information demonstrated by the claimant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds that the duty to notify the veteran in his claim for an increased evaluation has been met. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. In this regard, the veteran has been afforded VA examinations to evaluate his lumbar spine disability. In addition, all identified records that are available have been obtained. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that the duty to assist provisions of the VCAA have been met. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected lumbar spine disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should 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. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 506 (2007). The RO has evaluated the veteran's service-connected residuals of a lumbar spine injury with degenerative arthritis under Diagnostic Code 5010 for traumatic arthritis and former Diagnostic Code 5294. 38 C.F.R. § 4.71a (2002). Diagnostic Code 5010 mandates the claim be evaluated as degenerative arthritis. Diagnostic Code 5003 specifies that degenerative arthritis be rated based on limitation of motion of the affected part. When limitation of motion is noncompensable, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is in order with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is appropriate with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5294 did not have independent rating criteria, but rather was rated by analogy as lumbosacral strain, pursuant to former Diagnostic Code 5295. The veteran filed his current claim for an increased rating for his lumbar spine disability in August 2004. The pertinent regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified, effective September 26, 2003. These reclassified diagnostic codes include 5237 for lumbosacral strain. Under Diagnostic Code 5237, lumbosacral strain is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. According to the General Rating Formula, the disability is assessed 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. In pertinent part, a 20 percent rating is assigned for disability of the thoracolumbar spine when forward flexion is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent evaluation. An evaluation of 50 percent or greater requires favorable or unfavorable ankylosis. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine states that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, will be evaluated separately, under an appropriate diagnostic code. Note (2) sets forth the normal ranges of motion for the spine for purposes of disability evaluation. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, 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 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The record indicates that entitlement to service connection for residuals of a lumbar spine injury with degenerative arthritis was established in a December 1975 decision and that a 10 percent evaluation was assigned. By a March 1976 rating decision, the RO increased the disability evaluation for the lumbar spine to 20 percent. In a September 2004 statement, the veteran's wife reported that the veteran experienced increased pain in his lumbar spine which was exacerbated by certain activities. Private treatment records dated from 2001 to 2003 show that the veteran received periodic treatment for his back and severe degenerative changes of the spine wre noted. The veteran underwent a VA examination in September 2004. He reported consistent back pain which was progressively getting worse. He stated that he experienced flare-ups upon bending, pushing, lifting, pulling and similar activities that involve back motion. Alleviating factors were rest and time. He denied radiation of pain down either leg. Examination of the lumbar spine revealed that the veteran walked with a slightly antalgic gait. He reported a pain level of 8. He rose from sitting with moderate to maximum use of his hands. Range of motion was limited in all directions by pain. Forward bending was restricted to bringing fingertips just above the knees or about 22 inches from the floor. There was no listing or discoloration but there was tenderness to percussion over the paraspinal muscles of the lumbar spine. Paraspinal muscles were in moderate sustained contraction, especially on the right. Straight leg raising was possible to about 45 degrees with either leg. He was able to squat and stand up without difficulty. He could walk on tiptoes or heels. Sensory was intact to light touch and pain in both legs and deep tendon reflexes were equal and normal at the knees and ankles. No muscle weakness or atrophy was detected. Forward flexion four times was to 60, 60, 58 and 58 degrees. Extension four times was to 20 degrees. Left lateral flexion four times was to 15 degrees. Right lateral flexion four times was to 10, 12, 15, and 15 degrees. Left rotation four times was to 10, 10, 12 and 12 degrees. Right rotation four times was to 12, 15, 15 and 12 degrees. The veteran reported an increase in pain on any movement of the lumbar spine. X-rays showed severe degenerative changes. He was diagnosed as having chronic low back pain with sustained muscle contraction and severe degenerative joint disease of the spine. VA outpatient treatment records dated from 2004 to 2007 document ongoing treatment for lumbar spine pain. The veteran underwent another VA examination on January 30, 2007. He reported a history of fatigue, decreased motion, stiffness, spasms and pain. He stated that the pain radiated to his mid and upper back, posterior pelvis area, posterior thighs and bilateral knees. He reported that the flare-ups were severe and occurred weekly. On physical examination, the veteran ambulated with a mild antalgic gait. He moved from sitting to standing position with moderate use of his hands. He was able to stand on his toes, with difficulty with balance while standing on his heels. There was no muscle weakness or atrophy. Forward flexion of the lumbar spine four times was to 24, 25, 33 and 30 degrees. Extension four times was to 14, 14, 10 and 15 degrees. Left lateral flexion four times was to 17, 16, 17 and 18 degrees. Right lateral flexion four times was to 18, 18, 17 and 20 degrees. Left rotation four times was to 28, 25, 26 and 19 degrees. Right rotation four times was to 26, 21, 16 and 13 degrees. The veteran reported pain throughout all movements. The examiner noted exacerbation of pain during the physical examination. X-rays revealed advanced hypertrophic degenerative arthritic changes which may have progressed slightly since September 2004. The veteran was diagnosed as having chronic low back pain with normal neurologic examination. The examiner noted that there was no objective evidence of radiculopathy. There were advanced degenerative changes. Under the rating criteria, forward flexion of the thoracolumbar spine to 30 degrees or less warrants a 40 percent evaluation. On VA examination on January 30, 2007, the veteran's forward flexion in three out of four attempts was recorded as 24, 25 and 30 degrees. Clearly the January 2007 VA examination report shows that the veteran's range of motion of the thoracolumbar spine is effectively reduced to 30 degrees or less. Therefore, a 40 percent evaluation is warranted as of January 30, 2007. 38 C.F.R. § 4.71a, Code 5237. Prior to January 30, 2007, however, the veteran's lumbar spine symptomatology did not meet the criteria for a higher evaluation as there is no evidence of ankylosis and flexion of the thoracolumbar spine was greater than 30 degrees. Specifically, on VA examination in September 2004, the veteran had 58 to 60 degrees of forward flexion of the spine. Thus, the criteria for a 40 rating prior to January 30, 2007, have not been met. The Board has considered entitlement to an evaluation in excess of 40 percent for the veteran's degenerative arthritis of the lumbar spine as of January 30, 2007, but this is not demonstrated by the evidence. Ankylosis must be demonstrated in order to have an evaluation of 50 percent or higher under the revised rating criteria or additional neurologic impairment must be shown. The medical records do not contain any indication or diagnosis of ankylosis. The January 2007 examination also yielded normal neurologic findings. An increased rating is not warranted on the basis of neurologic impairment. The Board must conclude that the preponderance of the evidence is against an evaluation in excess of 40 percent as of January 30, 2007. The veteran's representative indicated that Diagnostic Code 5320, which pertains to muscle injuries, should be considered in evaluating the veteran's lumbar spine disability. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). The Board finds that Diagnostic Code 5230 is not applicable in this case as the veteran does not have a muscle injury and the veteran's lumbar spine symptomatology is adequately addressed under the rating criteria for the spine. The Board also has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the assignment of any rating higher than 20 percent prior to January 30, 2007, and against the assignment of rating higher than 40 percent since that date. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 20 percent for residuals of a lumbar spine injury with degenerative arthritis, prior to January 30, 2007, is denied. A 40 percent rating for residuals of a lumbar spine injury with degenerative arthritis, from January 30, 2007, is granted. REMAND The veteran will be entitled to a TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. But even if the ratings for his disabilities fail to meet these threshold minimum percentage requirements of § 4.16(a), the veteran may still receive a TDIU on an extra-scheduler basis provided it is still shown he is incapable of obtaining and maintaining substantially gainful employment. See 38 C.F.R. §§ 3.321(b)(1) and 4.16(b). See also Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the veteran is service-connected for and currently assigned a 40 percent evaluation for a lumbar spine disability and a noncompensable evaluation for hearing loss. As such, the veteran does not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The veteran claims he is unable to obtain or maintain substantially gainful employment because of the severity of his lumbar spine disability. On VA examination in January 2007, the examiner opined that the veteran should not engage in employment that would involve heavy or moderate physical work. The examiner, however, felt that the veteran was capable of performing sedentary and/or light work. In September 2007 correspondence, the veteran's representative emphasized that the veteran had an extremely limited education and employment history and that he did not have any transferable skills or prior history working in sedentary or light work jobs (past employment involved working in a cheese factory warehouse, farm equipment warehouse and clerk at a grocery store). The veteran's representative also stated that the veteran's hearing loss disability would interfere with the veteran's ability to communicate with others, which would also affect his employability. In addition, the veteran's representative pointed out that the veteran's earnings from the Social Security Administration shows that over a period of 20 years (from 1983 to 2003) the veteran only earned a total of $20, 550. In the April 2007 supplemental statement of the case, the RO expressly considered whether an extraschedular rating is appropriate and declined to refer the veteran's case for such consideration. While the Board does not have the authority to grant an extraschedular evaluation in the first instance, it is not precluded from reviewing a RO determination that referral is not warranted and confirming that decision. In this case, based on the factual circumstances presented, the Board concludes referral is needed. See Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the case is REMANDED for the following action: 1. Refer the veteran's claim for TDIU to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Thereafter, re-adjudicate the claim. If the benefit sought on appeal is not granted, issue the veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs