Citation Nr: 0814144 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-28 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether reduction of the rating assigned to service- connected degenerative disc disease, L5-S1 from 60 percent to 10 percent, effective July 1, 2005, was proper. 2. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease, L5-S1, from July 1, 2005 to January 12, 2006. 3. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, L5-S1, since January 12, 2006. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from January 1978 to July 1999. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from an April 2005 rating determination by the above Regional Office (RO). In the April 2005 rating decision, the RO reduced the veteran's 60 percent rating for degenerative disc disease, L5/S1 to 10 percent, effective July 1, 2005. The veteran disagreed with the determination. In the Statement of the Case (SOC), however, the RO, in essence, adjudicated the claim as an increased rating issue, rather than whether the reduction in rating was proper. On substantive appeal, the veteran disagreed with the assigned rating, and stated "a decrease in those benefits would place a strain on the situation financially for my family and I." By Supplemental Statement of the Case (SSOC) issued in October 2005, the RO confirmed and continued the 10 percent rating, but in May 2006 it increased the assigned rating to 20 percent, effective January 12, 2006. Given the foregoing procedural development in this case and in order to ensure that all of the veteran's contentions are fully addressed, the issues on appeal are as stated on the title page. Additional evidence was received in 2008 after the case had been certified to the Board by the RO. Under 38 C.F.R. § 20.1304, such evidence usually requires a return of the case to the RO for review, consideration, and preparation of a SSOC prior to a Board decision, unless there has been a waiver of such initial RO review. The evidence in this instance consists of VA outpatient treatment record dated in January 2008. These medical records were previously submitted by the veteran and were already of record at that time of the last of the SSOC and thus do not preclude a decision by the Board at this time. FINDINGS OF FACT 1. By a May 2001 rating decision, the RO increased the disability rating for the veteran's service-connected lumbar spine disability to 60 percent, effective December 26, 2000. 2. Following a September 2004 VA examination, the RO proposed to reduce the rating for the service-connected lumbar spine disability from 60 percent to 10 percent. 3. By a letter dated in February 2005, the RO notified the veteran that medical evidence reflected improvement in his condition and that the RO proposed to reduce the 60 percent evaluation. 4. By a rating decision dated in April 2005, the RO implemented a reduction to 10 percent, effective July 1, 2005. Notice of the reduction was mailed to the veteran that same month. 5. A comparison of the medical evidence upon which a 60 percent disability rating was awarded with the evidence received in connection with the rating reduction reflects improvement in the service-connected lumbar spine disability to a level no higher than that accounted for by the 10- percent rating. 6. From July 1, 2005 to January 12, 2006, the veteran's degenerative disc disease of L5-S1 was manifested by no more than slight limitation of motion with forward flexion of the thoracolumbar spine greater 60 degrees, but not greater than 85 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. Objectively, there is no evidence of moderate intervertebral disc syndrome, chronic neurologic disability manifestations, or incapacitating episodes requiring bed rest within the previous 12-month period. 7. Since January 12, 2006, the veteran's degenerative disc disease of L5-S1 is manifested by no more than moderate limitation of motion with forward flexion of the thoracolumbar spine greater 30 degrees; the spine is not ankylosis and objectively, there is no evidence of severe intervertebral disc syndrome, chronic neurologic disability manifestations, or incapacitating episodes requiring bed rest within the previous 12-month period. CONCLUSIONS OF LAW 1. The rating for degenerative disc disease, L5-S1 was properly reduced to 10 percent, and the criteria for restoration of a 60 percent evaluation for the disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5243 (2007); 38 C.F.R. § 4,71a, DC 5293 (2002). 2. From July 1, 2005 to January 12, 2006, the criteria for a rating in excess of 10 percent for degenerative disc disease, L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71, DC 5243 (2007); 38 C.F.R. § 4.71a, DC 5293 (2002). 3. Since January 12, 2006, the criteria for a rating in excess of 20 percent for degenerative disc disease, L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71, DC 5243 (2007); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5293 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Laws and Regulations As a preliminary matter, the Board notes that the veteran does not contend, and the evidence does not reflect, noncompliance with the procedural requirements for rating reductions. See 38 C.F.R. § 3.105(e) (requiring, inter alia, notification of the proposed reduction in evaluation, a statement of the facts and reasons for such reduction, and an opportunity to submit evidence against a proposed reduction). Therefore, the Board will focus only upon the propriety of the reduction, and (given the submission of post-reduction evidence in connection with the restoration question during the pendency of the appeal) whether, since the effective date of the reduction, the record presents a basis for a higher evaluation. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. As to the above, under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. Here, since the 60 percent evaluation was granted in May 2001, effective December 2000, and reduced to 10 percent in April 2005, effective July 2005, it had not been in effect for the requisite period of time. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not directly applicable in this instance. The veteran was initially awarded service connection for lumbar spine disc disease in February 1999 based on service medical records and February 1999 predischarge examination. A 20 percent evaluation was assigned under DC 5293. In a May 2001 rating decision, the RO increased the evaluation for the veteran's service-connected lumbar spine disability to 60 percent based on the results of a February 2001 VA examination. At that time under DC 5293, a 10 percent was assigned for mild intervertebral disc syndrome. A 20 percent rating was assigned for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation was warranted for intervertebral disc syndrome manifested by severe; recurring attacks with intermittent relief of intervertebral syndrome. A maximum 60 percent evaluation was assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a. Alternatively, ratings were available based on limitation of motion of the lumbar spine rated under DC 5292. Under this diagnostic code, 10, 20, and 40 percent ratings were assigned based on whether the limitation of motion of the lumbar spine was slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a. During the course of the veteran's appeal, the regulations for rating disabilities of the spine were twice revised, effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54,345-349 (Aug. 22, 2002) and 68 Fed. Reg. 51,454-458 (Aug. 27, 2003). These changes are listed under DCs 5235 to 5243, with DC 5243 now embodying the recently revised provisions of the former DC 5293 (for intervertebral disc syndrome). All applicable versions of the rating criteria will be considered, but the new criteria may only be applied as of their effective date (i.e., at no earlier date). See VAOPGCPREC 3-2000. Under the new criteria, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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. A 40 percent rating is assigned for when either forward flexion of the thoracolumbar spine is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months warrant a 10 percent evaluation. Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrant a 20 percent evaluation. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrant a 40 percent evaluation. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warrant a 60 percent evaluation. 38 C.F.R. § 4.71a, (2007). In addition to the rating which is assigned for the orthopedic manifestations of a lumbar spine disability, the revised regulations also mandate that a separate rating should be considered for any associated objective neurologic abnormalities of the disability, including, but not limited to, bowel or bladder impairment. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, (2007). Normal forward flexion of the thoracolumbar segment of the 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 rotation are zero to 30 degrees. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2007). Propriety of the reduction of the from 60 percent to 10 percent The evidence of record establishes that restoration of a 60 percent rating for the veteran's service-connected lumbar spine disability is not warranted. The Board notes, that comparing the findings from the February 2001 VA examination report, which were the basis for the assignment of the 60 percent evaluation, with those from the subsequent VA examination reports, reveal overall improvement in the lumbar spine disability. During VA examination in February 2001, the veteran complained of worsening and more frequent lumbar pain at least once or twice a month, aggravated by prolonged standing, walking, stooping and bending. The pain affects his daily activities and his occupation. He takes medication as needed which provides minimal relief and at other times no relief at all. Forward flexion was to 75 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, rotation on the right to 20 degrees, and 15 degrees on the left. Flareups caused 50 percent less range of motion. There was mild to moderate paravertebral muscle spasm. There was no neurological abnormality involving the lumbar spine at that time. During VA examination in April 2002 forward flexion was to 60 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right rotation 10 degrees, and left rotation to 5 degrees. Pain began at 55 degrees on flexion forward, at 2 degrees on extension, at 15 degrees on right lateral flexion, at 8 degrees on left lateral flexion, at 8 degrees on right rotation and at 3 degrees on left rotation. On acute flare-ups of pain, there was probably 25 percent less range of motion. There was no tenderness to palpation of the lumbar spine or postural abnormalities. There was no fixed deformity of the lumbar spine or atrophy of the musculature. Left-sided paravertebral muscle spasms were noted. VA outpatient treatment records dated from 2000 to 2002 show continued evaluation and treatment for chronic low back pain with no other clinical findings. While these records show that the veteran complained of chronic low back pain on several occasions, the reports include few objective findings, none of which are supportive of the veteran's claim for restoration. Although the veteran also continued to complain of "constant worst possible pain of his life," a May 2003 VA examination reflected an improvement in range of motion. The veteran's daily activities were not compatible with his complaints of constant, worsening pain. The pain was treated conservatively with stretching exercises, massage with analgesic ointment, back support, and rest. He also reported daily flare-ups of back pain that were worse than agonizing pain lasting up to an hour and relieved spontaneously without medication. The pain did not radiate to any part of his body. The examiner noted that flare-ups generally were not relieved by just conservative measures. The veteran reported that his back condition affects his daily activities because it slows him down, but that he is able to take care of his home and is able to perform his job as a substitute teacher. On examination there was mild tenderness to deep palpation, but there was no muscle spasm. Forward flexion was to 90 degrees with only mild pain that started around 70 degrees and ends at 90 degrees. Extension was to 30 degrees with only discomfort felt. Lateral flexion, both right and left was to 30 degrees with only mild pain. Rotation was to 30 degrees with only mild discomfort noticed on the right side of the lower back. The examiner estimated that during acute flare-ups flexion was further reduced by 10 percent. This estimate was based on X-ray results which showed no change since a previous benign MRI. The examiner concluded the veteran's back pain had improved since his last examination, and his range of motion was worse at that time and had presently improved a lot. Although the veteran claimed "constant, worst possible pain of his life," and flare-ups with "worse than agonizing pain," there was no physical evidence to support his complaints and it was not compatible to live with this type of pain constantly and not receive treatment for it. During VA examination in September 2004 the veteran denied back pain and when asked about active medication denied any. He had been employed as a teacher's aid for past 2 years and was also a student. Flare-ups occurred every three months, described as severe localized back pain lasting three days. His treatment consisted of lying on his back and stretching. Every 6 months he goes for evaluation of back pain, with the treatment consisting of heat, cream, stretching exercises, rest, back brace, and support. He denied bowel or bladder dysfunction. He had no trauma to the back and no surgery. He could walk three blocks without difficulty. His usual daily activities were not affected by his low back problems. However at work he had to slow down so as not to strain his back. On examination there was no obvious muscle spasm and no tenderness to deep palpation at the paravertebral muscle. There were no abnormal curvatures in the contour of the spine and his posture was erect. There were no neurological abnormalities related to his lower back. Deep tendon reflexes were brisk and equal on both sides. Sensation was intact and there was no sign of atrophy. He could walk on his toes but was unable to walk on his heels due to heel spurs. He had 90 degrees of forward flexion, extension to 30 degrees, lateral flexion to 30 degrees bilaterally and rotation to 30 degrees bilaterally. He had no problems with repetitive bending, but complained of tightness about the lower back. However there were no observed signs in the change in the degree of flexion. During flare-ups it was estimated that the veteran would have mild limitation of function and in between flare-ups no limitation of function. The clinical impression was mild degenerative disc disease L5-S1 with episodic back strain, without evidence of radiculopathy found. In January 2005, the RO proposed reducing the evaluation for lumbar spine disability to 10 percent based on the September 2004 examination. The veteran was notified the following month and given an opportunity to submit additional medical evidence to show that the proposed reduction should not be made. He did not respond. An April 2005 rating decision reduced the rating for lumbar spine disability to 10 percent, under the new criteria (DC 5243), effective from July 2005. As the medical evidence considered at the time of the reduction clearly demonstrated improvement, the RO's reduction from 60 percent to 10 percent, effective July 1, 2005 was proper. During the May 2003 examination, the veteran's lumbar spine had at least 70 degrees of flexion and 30 degrees of extension with mild pain. At the September 2004 VA examination, the veteran had full range of motion. The improved range of motion established a basis for the RO to determine that the veteran's lumbar spine disability warranted no more than a 10 percent evaluation. Under the former criteria, full range of motion would not warrant an evaluation in excess of 10 percent under DC 5292. While there is evidence of neurologic symptomatology related to the veteran's service-connected lumbar spine disability, the Board finds that, taken as a whole, the symptoms indicate a disability picture that is mild in degree, but not more. The September 2004 VA examiner reported that there were few neurological abnormalities associated with the veteran's lumbar spine disability. Objective testing showed normal motor, sensory, and reflex results. Moreover, no bowel or bladder impairment was noted. The record, does not demonstrate the existence of manifestations indicative of a pronounced intervertebral disc syndrome, such that a 60 percent rating is assignable under DC 5293. Likewise, under the revised criteria, the reduction was appropriate and no higher rating than the 10 percent would have been appropriate. The veteran's disability picture based on the evidence at the time of the reduction is already contemplated by the 10 percent rating; i.e., forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. See 38 C.F.R. § 4.71a DC 5243. Also, because the evidence does not demonstrate unfavorable ankylosis or intervertebral disc syndrome resulting in incapacitating episodes, a rating higher than the 10 percent to which the RO reduced the evaluation would not have been warranted. Id. While the Board does not doubt the sincerity of the veteran's belief that his lumbar spine disability was more severely disabling than it was rated as a result of the reduction, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter-such as the severity of a disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the medical evidence of record at the time of the reduction in rating only supported a 10 percent evaluation for a lumbar spine strain; and therefore the reduction was proper. The veteran has continued to pursue an increased evaluation for his lumbar spine disability, and the Board will now turn to this question. Pertinent Law and Regulations for Increased Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, the present appeal reflects that the veteran is already in receipt of such "staged" ratings for his service-connected lumbar disc disease. Rating in excess of 10 percent from July 1, 2005 to January 12, 2006 As discussed earlier, the evidence prior to July 2005 failed to show that a rating in excess of 10 percent was warranted for the veteran's lumbar spine disability. Pertinent evidence of record for the period in question consists of VA outpatient treatment records dated from September 2004 to May 2006. These records primarily show treatment for unrelated disorders. There is a single entry dated in December 2005 which shows he complained of chronic low back pain, but it does not otherwise provide any clinical findings. Thus, the Board finds that the criteria for a rating in excess of 10 percent for the veteran's service-connected degenerative disc disease, L5-S1, were not met between July 1, 2005 and January 12, 2006. Rating in excess of 20 percent since January 12, 2006 The veteran's degenerative disc disease, L5-S1 is currently rated as 20 percent disabling under DC 5243. In January 2006 he underwent VA examination complaining of pain radiating down his left lower extremity with a tingling numbness sensation. He reported 7-8 severe episodes of lower back pain in the last year and stated that he had been incapacitated where he has had to stay home and miss work, although he was not on orders from his physician. He complained of pain with prolonged sitting and bending as well as a lack of endurance and chronic fatigue. He used pain medications and analgesic ointment as needed and had been prescribed a back brace. There was no bowel or bladder dysfunction. There was moderately severe paravertebral muscle spasm involving the entire lumbar spine and objective signs of fatigability. Forward flexion was limited to 60 degrees, with extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 8 degrees and right rotation to 12 degrees and left rotation limited to 6 degrees. On repetitive motion, flexion of the lumbar spine decreased to 35 degrees and extension of the lumbar spine decreased to 3 degrees. Pain was the major functional impact, which is moderately severe. On acute flare-ups of pain, there was 50 percent less range of motion of the lumbar spine with flexion of the lumbar spine to 30 degrees and extension to 2 degrees. There was some neurologic abnormality involving the lumbar spine. Examination of the left lower extremity revealed, deep tendon reflexes to be brisk in the left lower extremity. Pinprick and vibratory sensation were also found to be brisk in the left lower extremity. Straight leg raising was limited to 10 degrees. The veteran had an antalgic gait due to recurrent pain in the lumbar spine and sciatic radiculopathy involving the veteran's left lower extremity. However, during a VA peripheral neuropathy examination, in March 2006, the veteran reported severe pain occurring on a daily basis, radiating to the right lower lumbar region and left buttock. He denied radiation of pain to the lower legs. He also complained of weakness and fatigue but denied any functional loss. The symptoms occurred about twice a week precipitated by bending, reaching or sitting. He stated that his symptoms last all day and are alleviated by lying down on the floor. He stated that there was no improvement with the current medications. He denied any limitation with his job as a substitute teacher and reported only a mild affect on activities of daily living. The veteran had not been hospitalized but did report being seen in the emergency room in November 2005 for his lower back problem. He denied any period of incapacitation. On examination the veteran ambulated with a nonantalgic gait and the lower extremities showed no evidence of atrophy or abnormality. Motor strength was 5/5 and sensation was intact. Deep tendon reflexes were diminished in the knee and ankle. The examiner concluded there was no current evidence of left leg radiculopathy. The remaining evidence of record consists of VA treatment records dated between June 2006 to January 2007. During outpatient evaluation in October 2006 the veteran continued to complain of back pain with no suggestion of radiculopathy. He denied symptoms of bowel and bladder dysfunction. On examination he ambulated with a non-antalgic gait. Straight leg raising was grossly intact, muscle strength was 5/5, and deep tendon reflexes were 2+. In November 2006, the veteran reported employment as an electronic technician which required lifting and carrying 50 and 75 pounds. He complained of stabbing sharp, pain which he treats with stretching exercises. He denied taking medication. Aggravating activities included prolonged standing, sitting and bending. On examination the lumbar paraspinals were weak, but sensation was intact. Heel walking was hesitant secondary to heel spurs, but toe walking was normal. Forward flexion was to 40 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, and right lateral flexion to 10 degrees. The current clinical and diagnostic findings do not satisfy the criteria for an evaluation in excess of a 20 percent. In this case, there is no credible evidence of severe limitation of motion of the lumbar spine under the old criteria, and there is no credible evidence of forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine under the revised criteria. (See DC 5292, prior to September 26, 2003 and DC 5243 effective September 26, 2003). The Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. It is not disputed that the veteran has appreciable limitation of motion of the thoracolumbar segment of the spine due to pain. However, the lumbar disc disease has not been shown to result in muscle atrophy, point tenderness or abnormal gait. Although the findings concerning actual range of motion have been highly variable, with forward flexion measured from 60 to 30 degrees and extension from 0 to 2 degrees, the totality of the clinical evidence does not attest to significant increased functional impairment other than that contemplated by the current rating. Of some significance is the fact that aside from undergoing VA rating examinations in 2006 there is no objective indication that the veteran has sought or received any regular treatment for his lumbar spine, or that he is taking prescribed medications. He has not undergone surgery or been issued a cane or back brace. It is the Board's opinion that the effects of pain reasonably shown to be due to lumbar disc disease are fully contemplated by the 20 percent rating that is now in effect. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating under these circumstances. Although the VA examination reports, discussed above, together with the remainder of the medical evidence of record, shows evidence of disc disease involving L5-S1, significant neurological findings appropriate to that site have not demonstrated. Most recently in late 2006 there was no evidence of any radiculopathy and objective testing showed normal motor, sensory, and reflex results. No bowel or bladder impairment was noted. Therefore, under DC 5293, a rating in excess of 20 percent was not warranted. In addition, with respect to a higher rating based on the frequency and extent of incapacitating episodes (defined 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), while the record does reflect continued complaints of radiating low back pain, these complaints have not been shown to require that the veteran remain in bed, prescribed or otherwise, for any period approaching a total duration of at least four weeks during the past 12 months to justify a rating higher than 20 percent under DC 5243. The Board has also considered whether an increased evaluation is in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the veteran's lumbar spine disability. As there is no current clinical or diagnostic evidence of any significant neurological findings, there is no basis to assign a separate rating under any of the applicable neurological rating codes. Thus, consideration of separately evaluating and combining the neurologic and orthopedic manifestations of the veteran's lumbar spine would not result in a higher rating. There is no indication in the record of any unusual disability picture that application of regular schedular standards is impractical, especially in the absence of any allegation of marked interference with employment. Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 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 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). 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, and (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). The Court has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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 a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) In letters dated in August 2001, March 2006, and September 2007 the RO informed the veteran of its duty to assist him in substantiating his claims, and the effect of this duty upon his claims. The letters informed him that VA would obtain all relevant evidence in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send any other medical records supporting his claims, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide "any evidence in your possession that pertains to your claim." The contents of the above letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided opportunities to submit additional evidence. The purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. More recently, the U.S. Court of Appeals for Veterans Claims concluded that, for an increased rating claim, VCAA notice should include notice that evidence of increased severity of the disorder or of greater interference with work or activities of daily life is required to support a claim for increased evaluation; that it include at least general notice of more particularized bases of granting increased evaluations where, as here, particular criteria beyond mere increase in severity may be required for assignment of a higher disability rating; that it include notice that a particular rating will be assigned by applying diagnostic codes; and that it include notice, in the form of examples, of the kinds of evidence required to support the increased rating claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). While the veteran was not provided this more detailed notice in the aforementioned letters, the Board finds that he is not prejudiced by this omission in the adjudication of his increased rating claim. Recent VCAA notice letters in March 2006 and September 2007, were followed by readjudication of the claim in the SSOCs dated May 2006, January 2007, and February 2008, all of which contain a list of the evidence considered, a summary of adjudicative actions, included all pertinent laws and regulation, including the criteria for evaluation of the veteran's lumbar disc disease, and an explanation for the decision reached. Thus, the purposes of the notice requirements have not been frustrated and any error in failing to provide additional notice has not affected the essential fairness of the adjudication process because the veteran had actual knowledge of what information and evidence is needed to establish his claims. See Sanders, supra. In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claims are being denied, such matters are moot. Thus, the veteran has not been prejudiced in this regard. In addition, it appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran's service medical records, VA and non VA treatment reports, and VA examinations are of record. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Accordingly, the Board finds that VA met its duty to assist under the VCAA. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Restoration of the veteran's 60 percent rating for degenerative disc disease, L5-S1, prior to July 1, 2005 is denied. From July 1, 2005 to January 12, 2006 an evaluation in excess of 10 percent for degenerative disc disease, L5-S1, is denied. From January 12, 2006, an evaluation in excess of 20 percent for degenerative disc disease, L5-S1, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs