Citation Nr: 0813929 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 06-29 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 20 percent for a postoperative bulging disc/degenerative disc at L4-5 and L5-S1. ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from January 2004 until May 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. FINDING OF FACT Throughout the rating period on appeal, the veteran's bulging disc/degenerative disc at L4-5 and L5-S1 has been productive of complaints of pain; objectively, there is limitation of flexion to no worse than 60 degrees, no showing of favorable ankylosis of the entire thoracolumbar spine and no demonstration of incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for a bulging disc/degenerative disc at L4-5 and L5- S1 have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The Board has reviewed all of the evidence in the veteran's claims file. 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 of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. At the outset, the Board notes that the veteran is appealing the initial disability rating assigned for his postoperative bulging disc/degenerative disc at L4-5 and L5-S1. As such, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for a bulging disc/degenerative disc at L4-5 and L5-S1 disorder was initially granted in a November 2005 rating decision. At that time, a 20 percent evaluation, effective May 10, 2005 was granted pursuant to DC 5243. The veteran contends that his symptoms are of such severity as to warrant an increased rating throughout the rating period on appeal. Again, the veteran is rated pursuant to Diagnostic Code 5243. That diagnostic code contemplates intervertebral disc syndrome, which is evaluated under the general rating formula for diseases and injuries of the spine. Under that general rating formula, a 20 percent rating is warranted where the evidence reveals 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 is not greater than 120 degrees; or if 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. 38 C.F.R. § 4.71a, DC 5243. In order to be entitled to the next-higher 40 percent evaluation, the evidence must demonstrate forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5243. In the present case, there is no support for assignment of the next-higher 40 percent evaluation under the general rating formula for any portion of the rating period on appeal. Indeed, upon a military examination in December 2004, the veteran had lumbar flexion which was 35 degrees active and 65 degrees passive. Several months later at a VA examination in September 2005, the veteran had forward flexion of the lumbar spine to 60 degrees. Again, flexion would have to be limited to 30 degrees to achieve a higher rating. There is also no showing of ankylosis. The Board acknowledges that additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination must be considered in evaluating musculoskeletal disabilities. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the veteran reported back pain in a November 2004 private treatment record. He described that he has pain in all positions, and it makes no difference whether he is sitting or standing. He additionally noted that that the pain often radiates into the knees, and that he has numbness and tingling which extend into his feet. In a December 2004 Medical Evaluation Board examination, the veteran additionally complained of constant lower back pain, sharp in nature. The veteran also reported back pain at his September 2005 VA examination, which was objectively confirmed on range of motion testing. He explained that he has back pain daily that continues to hurt around the mid to lower lumbar and radiates into either the left or right leg. He also stated that it is exacerbated by doing physical activity and made better by rest. He additionally noted that he had three to four incapacitating episodes in the past year lasting one to two days where he would have to take stronger medicine. The examination report noted that his back pain prevented him from performing chores such as lifting, pushing, pulling, picking up anything, or carrying anything. The veteran also reported constant back pain in his September 2006 substantive appeal. Although he reports that he had back surgery in March 2006, he states that he still has back pain and that it had increased, especially in the mornings. Additional private treatment records in March 2006 show complaints of back pain. While acknowledging the complaints and findings of low back pain as detailed above, the competent evidence simply does not show that such pain has resulted in additional functional limitation such as to find that his disability picture most nearly approximates the next-higher 40 percent rating. Again, VA examination in September 2005 revealed forward flexion to 60 degrees. Moreover, the veteran reported at that time that he did not wear a back brace or use a cane, crutch or walker. In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes provides for a 20 percent rating where the evidence demonstrates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the last 12 months. A 40 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months and a 60 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "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." Although the veteran reported at his September 2005 VA examination that he had three to four incapacitating episodes in the past year lasting one to two days, the evidence does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243. As such, Diagnostic Code 5243 cannot serve as a basis for an increased rating on the basis of incapacitating episodes. Additionally, Note (1) of the general rating formula instructs the rater to separately evaluate any associated objective neurologic abnormalities under an appropriate Diagnostic Code. In this vein, it is noted that throughout the rating period on appeal, the veteran has been assigned a separate 10 percent evaluation for radiculopathy for each lower extremity, associated with his postoperative bulging disc/degenerative disc at L4-5 and L5-S1 disorder pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that code section, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. In order to be entitled to the next-higher 20 percent rating, the evidence must show is warranted for moderate incomplete paralysis of the sciatic nerve. The Board finds no support for assignment of a 20 percent evaluation for each of the veteran's lower extremities for the neurologic manifestations of his back disability. In so finding, it is noted that a September 2005 VA examination report showed that cranial nerves II-XII were grossly intact. Additionally, the report showed that motor, sensory, and cerebella exams were grossly intact and that sensorium was normal in the lower extremities. A private treatment record from February 2006 also showed that muscle strength to the upper and lower extremities was 5/5 and equal bilaterally except at the dorsiflexion of the great toe. The Board finds that the pertinent post-service evidence, as detailed above, reveals no more than a mild neurologic manifestations of a back disability. To the extent that neurologic symptomatology is shown, such symptoms have been contemplated by the 10 percent rating assigned to each of the lower extremities and do not warrant a higher evaluation. The Board has considered whether staged ratings are appropriate, but finds no distinct time periods where the veteran's symptoms warrant different ratings. Hart v. Mansfield, No. 05-2424 (Vet. App. Nov. 19, 2007). In conclusion, there is no basis for a rating in excess of 20 percent for the orthopedic manifestations of a postoperative bulging disc/degenerative disc at L4-5 and L5-S1. Additionally, there is no basis for a rating in excess of 10 percent for each lower extremity for the neurologic manifestations of the veteran's back disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in September 2005, he was afforded a formal VA examination. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). ORDER Entitlement to a rating in excess of 20 percent for a postoperative bulging disc/degenerative disc at L4-5 and L5- S1 is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs