Citation Nr: 0814325 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-07 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 40 percent for postoperative lumbar disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active service from October 1972 to January 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's lumbar disc disease is presently manifested by subjective complaints of recurring episodic exacerbations of pain resulting in severe limitation of lumbar motion. Objectively, there is no evidence of ankylosis or incapacitating episodes of intervertebral disc syndrome requiring bed rest within the previous 12 month period. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for post operative lumbar disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293 (2002); 38 C.F.R. § 4.71a, DCs 5235-5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Law and Regulations 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's postoperative lumbar disc disease is currently rated as 40 percent disabling under DC 5293. Under DC 5293, a 40 percent evaluation is warranted for intervertebral disc syndrome manifested by severe; recurring attacks with intermittent relief of intervertebral syndrome which provides a maximum 60 percent evaluation for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the 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 which provides a maximum 40 percent rating for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a. Diagnostic Code 5295 provides for a maximum 40 percent evaluation for severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign; marked limitation of forward bending in the standing position; loss of lateral motion with osteoarthritic changes; or narrowing or irregularity of the joint space; or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a. During the course of this appeal, the regulations for rating disabilities of the spine were revised effective September 26, 2003. 68 Fed. Reg. 51,456 (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 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 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). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, (2007). Factual Background and Analysis The RO received the veteran's claim for an increased rating in February 2003. In support of the veteran's current claim for increase is a May 2003 VA examination report. The examiner noted the veteran's history of multiple surgeries, including the most recent in May 2002. Although there was slight improvement, the veteran continued to have constant dull pain radiating to his right buttock and right leg. He denied any bowel or bladder dysfunction. The veteran reported that he was unable to perform many of activities such as yard work or minor repairs. Prolonged standing and sitting were also a problem. Bending was also difficult and he was unable to run or jump. He takes Tylenol for the pain and was prescribed a back brace and physical therapy. Examination revealed the thoracic spine was convex. The veteran could only flex to 30 degrees, hyperextend to 20 degrees, lateral bend to 30 degrees bilaterally and rotate to 30 degrees. Muscle strength was 4/5. A report from the veteran's chiropractor, dated April 2004, noted the veteran well exceeded the 40 percent disability rating as he had progressive disability, weakness, pain and loss of function. He was very limited in his activities of daily living and needed bed rest routinely due to pain. He had reoccurring radiculopathy, loss of muscle strength, loss of heel walk, muscle spasms in the low back and lower extremity, and very little relief of his pain. Additional outpatient treatment records show the veteran continued to be evaluated throughout 2004 for chronic low back pain with acute exacerbations. Clinical findings included limited back extension to 20 degrees and forward flexion to the distal shin. Straight leg raise varied between 45 and 90 degrees. There was no numbness or weakness of his legs. Lasegue's test was negative for sciatica. On VA examination in May 2004, the veteran complained of decreased strength and that he had fallen twice as a result. The pain was continual and he required the use of cane and a walker when it was worse. There was significant functional limitation in both leisure and daily activities. On examination the veteran walked with a markedly antalgic gait. There was a well healed lumbar vertical scar that was not tender, depressed, adherent, or disfiguring. There was tenderness to palpation over the thoracolumbar spine and paraspinous area. Forward flexion was to 60 degrees, hyperextension to 15 degrees, rotation bilaterally to 15 degrees, and lateral bending to 15 degrees. Straight leg raising was positive bilaterally from a sitting position. Deep tendon reflexes were 2+ bilaterally. Private treatment records show that in June 2005, the veteran underwent surgery for left L3-4 disc extrusion with a large fragment on the back of the L4 vertebral body. These records also indicate absent reflex in the left knee and ankle. In June 2006 the veteran underwent additional surgery for recurrent left L3-4 disc extrusion. During VA examination in August 2006, the veteran's primary complaint of chronic pain remained the same. He also complained of left leg numbness, fatigability, lack of endurance, instability, weakness, and giving out of the left leg. He used a cane regularly and on occasion a walker. He experiences flare-ups every 2-3 months that lasts for a week and require him to use a wheelchair. He stated that he had been prescribed bedrest for 10 days by his physician. His daily activities were modified and he was unable to do household chores, yard work or minor repairs. Recreational activities, such as golf, fishing and bowling were limited. On examination the spine was nontender to palpation. He had reduced lordosis of the lumbar spine. Flexion of the spine was painful at 40 degrees, limited to 30 degrees by pain, fatigability and lack of endurance. Extension was painful at 5 degrees, lateral bending limited to 20 degrees bilaterally, limited to 10 degrees by pain. Rotation was to 30 degrees bilaterally, limited to 5 degrees, by pain. Straight leg raising was 80 degrees on the right and 45 degrees on the left. Muscle strength was normal in the right lower extremity and significantly weakened in the left at 3/5. Deep tendon reflexes were 2+ on the right patellar, on right ankle jerk and on left ankle jerk reflex. The left patellar reflex was absent. Sensation was intact on the right and increased on the left. In October 2006, the RO assigned a separate evaluation under DC 8520 for radiculopathy of the left lower extremity as associated with the veteran's postoperative lumbar disc disease. In January 2007, the RO increased that rating to 40 percent. Of some significance is a private medical report dated January 2007. The veteran underwent neurological testing which revealed polyradiculopathy with pronounced involvement of the L4 innervated muscles. During VA examination dated in April 2007, the veteran complained that his back had worsened since the last examination. He had mild to moderate straightening of the lordosis of the lumbar spine and moderate tenderness of the left paraspinal muscles. Forward flexion was to 40 degrees, with hyperextension to 20 degrees, bending to 30 degrees bilaterally, and rotation to 30 degrees, bilaterally. All of these ranges of motion were with pain and grimaces. The veteran lost 10 degrees in forward flexion and 10 degrees in right lateral bending primarily due to pain and to a lesser extent weakness, fatigability and lack of endurance. He could not walk on his heels or toes. Deep tendon reflexes were deceased in the left lower extremity with 0 to 1+ amplitude. Motor strength was also decreased with 3 to 5/5 in the left lower extremity. Sensory function was decreased in the left leg tested with pinprick and dull sensation. In July 2007, the RO assigned a separate evaluation under DC 8520 for radiculopathy of the right lower extremity associated with the veteran's postoperative lumbar disc disease. The Board has considered evaluation of the veteran's back disability under all potentially appropriate diagnostic codes to determine whether an evaluation higher than 40 percent can be assigned. However, clinical findings to support a higher evaluation under the new criteria have not been demonstrated. The evidence is negative for findings of ankylosis of the thoracolumbar spine under DC 5237. 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 six weeks during the past 12 months to justify a 60 percent under revised DC 5243. Considering the former criteria, the evidence describes a fairly consistent pattern of symptomatology and manifestations. VA examination findings include markedly antalgic gait, numbness, diminished reflexes, sensation and strength in the left lower extremity, and muscle spasms. The veteran has also repeatedly shown evidence of radiculopathy, and had positive straight leg findings noted throughout these reports. While such symptoms constitute evidence of neurologic impairment, the Board notes that separate 10 and 40 percent ratings already have been assigned for radiculopathy in the both lower extremities as the neurological manifestations of the lumbar disc disease. Since DCs 8620 and 8520 already account for this symptomatology, to assign a 60 percent evaluation for pronounced intervertebral disc syndrome would constitute pyramiding (or awarding benefits for the same disability twice), contrary to the provisions of 38 C.F.R. § 4.14 (2007). Therefore, an increased evaluation under DC 5293 based on the neurological symptoms is not warranted. The Board notes that pain has been demonstrated with range of motion testing of the lumbar spine. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1996). However, the evidence of record is negative for any objective showing of significant increased functional impairment due to those reports of pain other than that contemplated by the current rating. The Board also does not dispute the veteran's contentions that his back disability has caused him to alter his lifestyle and has restricted his activities. Even so, such complaints have been taken into consideration in the decision to assign a 40 percent evaluation. Further, the record shows that throughout the pendency of this appeal, the veteran's disability has remained uniform and that a higher rating is not warranted. Finally, the Board notes that the regular schedular standards contemplate the symptomatology shown. Thus, the evidence of record does not reflect any factor which takes the veteran outside of the norm, or which presents an exceptional case where his currently assigned disability rating is found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The preponderance of the evidence is against the claim, and that the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002). The appeal is denied. 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 a March 2003 letter the RO informed the veteran of its duty to assist him in substantiating his claim, and the effect of this duty upon his claim. The letter pre-dated the RO's rating decision in June 2003. See also VCAA letters dated in dated in March 2004, July 2006, and March 2007. 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 clearly 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 2004, July 2006 and March 2007, were followed by readjudication of the claim in the SSOCs dated January 2007 and October 2007, 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 claim herein is being denied, such matters are moot. 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 An evaluation in excess of 40 percent for postoperative lumbar disc disease is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs