Citation Nr: 0814682 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-05 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service connected lumbar strain with intervertebral disc syndrome associated with fracture, left femur (previously rated as lumbar strain). 2. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome affecting left lower extremity associated with fracture, left femur (newly acknowledged as a separately ratable element of service- connected lumbar strain). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from August 1969 through July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. There is no competent medical evidence of record establishing that the veteran has severe lumbar strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 2. There is no competent medical evidence of record showing forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 3. The veteran has not at any time had moderate intervertebral disc syndrome with recurring attacks; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 4. The record is devoid of evidence of moderate incomplete paralysis of the sciatic nerve at any time. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for service connected lumbar strain with intervertebral disc syndrome associated with fracture, left femur, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5295 (2002). 2. The criteria for an initial rating in excess of 10 percent for intervertebral disc syndrome affecting left lower extremity associated with fracture, left femur, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has appealed the initial rating for his service- connected back disability. He filed his service connection claim in August 1999. Lumbar strain was initially service connected with a noncompensable rating via the January 2001 rating decision. The veteran filed a notice of disagreement with this rating in September 2001. In April 2002, the rating was increased to 10 percent under Diagnostic Code (DC) 5295. And, in a March 2005 rating decision, the veteran's lumbar strain rating was increased to 20 percent under DC 5295-5243, which takes into account intervertebral disc syndrome, and he was awarded a separate 10 percent rating for intervertebral disc syndrome affecting the left lower extremity under DC 8520, which takes into account paralysis of the sciatic nerve. Thus, the question at hand is whether at any time during the course of this appeal, the veteran's disability has warranted a rating in excess of 20 percent for the lumbar strain, or in excess of 10 percent for the sciatic nerve paralysis. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which sets forth separate rating codes for various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evidence to be considered in the appeal of an initial rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). A disability must be considered in the context of the whole recorded history. During the pendency of this appeal, regulatory changes have twice amended the rating criteria for evaluating spine disabilities. The first change affected only the rating criteria for intervertebral disc syndrome. See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002). This amendment was effective September 23, 2002. Id. The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, were again revised effective September 26, 2003. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003); 69 Fed. Reg. 32449-32450 (June 10, 2004). Where a law or regulation (particularly those pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised scheduler criteria to a claim prior to the effective date of the pertinent amended regulations).The changes pertinent to the relevant diagnostic codes in this case are summarized, below. Under the old regulations, in effect prior to September 26, 2003, DC 5295 provided ratings for lumbosacral strain. For an increase under this rating criteria for the service connected lumbar strain, the evidence must show that the veteran's strain is severe with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, which would warrant a 40 percent rating. 38 C.F.R. § 4.71a, DC 5295 (2002). An increase under the old regulations for intervertebral disc syndrome would be available to the veteran if the medical evidence established that he had moderate intervertebral disc syndrome with recurring attacks, which would warrant a 20 percent rating, or a showing of severe intervertebral disc syndrome with recurring attacks with intermittent relief, which would warrant a 40 percent rating, or with 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, and little intermittent relief, which would be rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5293 (2002). The amended version of DC 5293, in effect from September 23, 2002 through September 25, 2003, provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopaedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. A 40 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating intervertebral disc syndrome. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopaedic and neurologic manifestations" means orthopaedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopaedic disabilities using evaluation criteria for the most appropriate orthopaedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provide that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopaedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a. Effective September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), spondylolisthesis or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242) (for degenerative arthritis of the spine, see also Diagnostic Code 5003). The General Rating Formula for Diseases and Injuries of the Spine provides the following ratings in excess of 20 percent for the lumbar sprain: a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2007). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. In particular, Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, under the current 38 C.F.R. § 4.71a, allows a 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent rating with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. And, for a rating in excess of 10 percent for the service connected affect on the left lower extremity, the evidence must show that the veteran has at least moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520 (2007). The words "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". See 38 C.F.R. 4.6. It should also be noted that use of descriptive terminology such as "moderate to severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. See 38 U.S.C.A. 7104(a); 38 C.F.R. 4.2, 4.6. To summarize, for an increase in the lumbar strain, the medical evidence must show severe lumbar strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. For an increase under the rating criteria for intervertebral disc syndrome there must be a showing of moderate intervertebral disc syndrome with recurring attacks; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. And for an increase for the affect on the left lower extremity, there must be evidence of moderate incomplete paralysis of the sciatic nerve. The veteran's claims folder was reviewed in full to assess whether any of the criteria applicable in this case are met to warrant an increase beyond his current ratings. A January 1998 CT scan of the lumbar spine was normal with no evidence of a herniated disc or spinal stenosis. The veteran was seen again in a VA outpatient facility in March and April 1998 with an assessment of chronic low back pain. By April 1999, the veteran was diagnosed with lumbar spondylosis with degenerative disc disease. See Beranek notes of April and May 1999. VA afforded the veteran a joint examination in June 1999 to assess his knee disability. The examiner noted L4-S1 mild arthritis and spinal instability in that report. Shortly thereafter, the veteran filed his service connection claim. Outpatient records show that the veteran continued to be treated for low back pain in December 1999 and March 2000, and was diagnosed in September with osteoarthritis and scoliosis. See VA outpatient treatment notes. In November 2000, the veteran was afforded a VA spine examination. The veteran described his back pain as constant and achy, aggravated by damp weather and prolonged standing. Physical examination revealed normal musculatures of the back and no neurological abnormalities. There was paraspinal tightening in the lower lumbar region with forward flexion, which was measured as 0 to 90 degrees. Extension of the back was 0 to 30 degrees, lateral flexion was 40 degrees bilaterally, and rotation was 30 degrees bilaterally. All ranges of motion were noted to have "minimal limitation due to the pain." Spine x-ray revealed that the prepuberal bodies, spaces and posterior elements were normal and not paraspinal soft tissue mass was observed. The diagnosis was lumbar strain with normal x-rays. Private chiropractic notes show that he was treated for management of his low back pain in 2001. There was no change in diagnosis during this treatment. The veteran was again afforded a VA spine examination in January 2002. His reported symptomology was unchanged from the November 2000 report. The examination was also essentially the same, although range of motion was described with more particularity. Pain began at 30 degrees of forward flexion and he was able to forward flex to 75 degrees with moderate functional loss due to the pain. Measurement of extension, flexion, and rotation was identical to that of the November 2000 report. He was again diagnosed with lumbar strain. It was following this examination that the veteran's lumbar strain was increased to 10 percent, taking into account the functional loss due to pain. See April 2002 rating decision. The veteran continued treatment for his low back pain and in an April 2004 x-ray report a minor abnormality was noted with the following impression: "The line of weight bearing favors lumbosacral instability? No other distinct abnormality is observed. This is a prediction since previous interpretation was lost in the transcription related process." A January 2005 x-ray report shows normal lumbosacral spine series with no compression fractures or evidence of spondylolisthesis. This report accompanied a VA examination report. At that time, the veteran's reported symptomology was pointedly different from prior reports. He complained of pain radiating into the left leg, along with weakness, stiffness, fatigability and lack of endurance with regard to the low back. He was using a back brace at the time of this examination. Physical examination revealed forward flexion to 75 degrees, and extension, left and right lateral flexion, and left and right rotation all to 15 degrees. After repetitive use, the examiner reported an additional 25% decreased range of motion. The veteran reported flare-ups two days per week with severe pain for two hours and moderate pain for the remainder of the day. The examiner noted that the pain radiates into the left leg with associated numbness and weakness. There were no associated bladder, bowel or erectile dysfunction problems. The examiner noted intervertebral disc syndrome involving the left lower extremity, without any incapacitating episodes during the prior year. Following the January 2006 Board remand, the veteran was afforded his most recent VA examination. At that time, physical examination revealed normal lumbar lordosis, with 30 degrees extension, 45 degrees flexion before pain starts with the ability to flex to 80 degrees, and lateral bending of 20 degrees with pain. There was no straight leg raising pain and no sciatic tension sign, reflexes were symmetric and the motory and sensory function in the lower extremities was "entirely normal." The examiner noted that there was no increased limitation of motion due to weakness, fatigability or incoordination during the repetitive portion of the examination. The examiner opined that his back pain was previously incorrectly characterized as secondary to leg length discrepancy, and that there was no nerve type disorder, as well as no evidence of intervertebral disc syndrome at that time. The diagnosis was arthralgia of the lumbar spine with mechanical back pain. As this summary of the medical evidence establishes, at no time during the veteran's course of treatment for his low back disability does the evidence establish severe lumbar strain with listing of whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Nor does it show forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Also, at no time does the evidence suggest that has ever been moderate intervertebral disc syndrome with recurring attacks; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. And, the record is devoid of evidence of moderate incomplete paralysis of the sciatic nerve. Accordingly, the veteran's claim for an increased rating for both his lumbar strain and his intervertebral disc syndrome affecting the left lower must be denied. In reaching these conclusions, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the veteran contends his disability is essentially manifested by pain. The March 2005 rating decision took these factors into account, thus the veteran's current ratings reflect his functional impairment due to pain. For all of these reasons, the Board finds that 20 percent and 10 percent ratings adequately compensate the veteran for the current level of disability resulting from his lumbar spine disabilities, including their effect on his left lower extremity and his functional impairment due to pain. An increase is not warranted. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of his increased rating claims. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. The Court of Appeals for Veteran's Claims (Court) has recently issued a decision with regard to the notice required in increased evaluation claims. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The Court found that, at a minimum, adequate notice requires that VA notify the veteran that, to substantiate the claim: (1) the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life; (2) if the diagnostic code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability, and the effect of that worsening has on his employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the veteran; (3) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the March 2004 and April 2006 letters to the veteran do not contain the level of specificity set forth in Vazquez-Flores. However, the procedural defect does not constitute prejudicial error in this case, because there is evidence of actual knowledge on the part of the veteran, as well as other documentation in the claims file that reflects notification of what is needed to substantiate the claim, which a reasonable person could be expected to understand. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the Board is aware of the veteran's statements in the October 2002 hearing transcript and the several VA examination reports, in which a description was made as the effect of the service-connected disability on employability and daily life. In particular, the impact on the veteran's employment was discussed, as well as the fact that he has had trouble doing yard work and work on his car due to his service connected disabilities. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge satisfies the first and fourth requirements of Vazquez-Flores. Additionally, and particularly in light of the veteran's lay assertions of effects of the service-connected disability on employability and daily life, the Board does not view the disorder at issue to be covered by the second requirement of Vazquez-Flores, and no further analysis in that regard is necessary. Also, the March 2005 Supplemental Statement of the Case specifically discusses all rating criteria utilized in the present case. The veteran was accordingly made aware of the requirements for an increased evaluation pursuant to the applicable diagnostic criteria, and such action thus satisfies the third notification requirement of Vazquez- Flores. Finally, the April 2006 letter does inform the veteran of the type of evidence necessary to establish an effective date and a disability rating, as is required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the requirements of 38 C.F.R. § 3.159(b)(1) (2007), Vazquez-Flores, and Dingess are all met, satisfying VA's duty to notify the veteran. VA also has a duty to assist the veteran in substantiating his claim under 38 C.F.R. § 3.159(c), (d) (2007). Here, the veteran's statements, his service medical records, and VA and private treatment records have been associated with the claims folder. The veteran was afforded a Board hearing and the transcript is of record. He was also afforded several VA examinations and the reports are associated with the claims folder. The veteran has not notified VA of any additional available relevant records with regard to his claims. VA has done everything reasonably possible to assist the veteran. A remand for further development of these claims would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to an initial rating in excess of 20 percent for service connected lumbar strain with intervertebral disc syndrome associated with fracture, left femur, is denied. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome affecting left lower extremity associated with fracture, left femur, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs