Citation Nr: 0814876 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-34 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for spondylolisthesis of the lumbar spine. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from January 1986 until March 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. Further, in accordance with his request, a hearing was scheduled before a Veterans Law Judge at the RO in April 2008. The appellant failed to report to the scheduled hearing. As such, the veteran's hearing request will be considered withdrawn. See 38 C.F.R. § 20.704(d) (2007). Accordingly, his claim will be adjudicated without further delay based upon all the evidence presently of record. FINDING OF FACT Throughout the rating period on appeal, the veteran's lumbar spine disability has been manifested by subjective complaints of constant pain, with radiation to the lower extremities, productive of no more than moderate limitation of motion, with no neurological deficit. Bedrest has not been prescribed. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for spondylolisthesis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002); DCs 5239, 5243 (2007). REASONS AND BASES FOR FINDING 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 (2006). 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). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, as will be discussed below, the record does not support the assignment of different percentage ratings during the time period on appeal. Multiple revisions have been made to the Schedule for Rating Disabilities for the spine. Prior to the time the veteran filed his claim, the criteria for adjudicating intervertebral disc syndrome was revised. See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293). Only the amended disc regulations are applicable to the current claim. While the case was on appeal, the rating criteria for the remaining spinal disabilities were revised and published in the Federal Register. See 66 Fed. Reg. 51454- 51458 (Sept. 26, 2003) (now codified as amended at 38 C.F.R. § 4.71(a), DCs 5235 to 5243). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003 (Nov. 19, 2003). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2006) ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has also held that DC 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. See VAOPGCPREC 37- 97. Throughout the rating period on appeal, he has been assigned a 20 percent evaluation pursuant to DC 5099-5010. In this regard, DC 5010 addresses arthritis due to trauma rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. As a 20 percent rating is the highest available for arthritis, there is no basis for a higher rating under DC 5010. In order for the veteran to be entitled to a rating higher than 20 percent for his low back disability, the evidence must show any of the following * favorable ankylosis (30 percent under DC 5289); * severe limitation of motion (40 percent under DC 5292); * severe lumbosacral strain with listing of whole spine, positive Goldthwaite's sign, marked limitation of forward bending in 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 (40 percent under DC 5295) (pre-amended spine regulations) OR * with forward flexion of the thoracolumbar spine to 30 degrees or less; * with favorable ankylosis of the entire thoracolumbar spine (both at 40 percent); * separately rating associated objective neurological abnormalities under Note (1); * with intervertebral disc syndrome, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; or under the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined (amended spine and disc regulations). An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bedrest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provided that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. See 67 Fed. Reg. 54345 (2002). Effective from September 2003, the diagnostic criteria for intervertebral disc syndrome was renumbered as DC 5243. The regulations remained the same in effect; however, there was some minor re-phrasing. In this respect, DC 5243 provided the following: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. It also deleted the old Note 2. With these provisions in mind, the Board will consider the merits of the veteran's claim for an increased rating. Of note, the veteran has only undergone one VA examination in October 2004. He was scheduled for an examination in February 2007 but failed to report. Therefore, the Board will consider the evidence of record, which also includes VA clinical and private treatment records. First, ankylosis has not been shown. For definition purposes, ankylosis is a fixation of the joint. In the October 2004 VA examination, forward flexion was noted to 45 degrees; extension to 5 degrees; right lateral flexion to 30 degrees and 25 degrees on the left; and rotation to 45 degrees bilaterally. While all range of motion findings were painful, the joint was not in a fixed position as evidenced by the ability of movement. As ankylosis (fixation of the joint) is not shown, there is no basis for a higher rating for favorable or unfavorable ankylosis. Next, "severe" limitation of motion has not been shown. Although flexion and extension are clearly limited - 45 degrees flexion (anatomically normal to 90 degrees) and 5 degrees extension (anatomically normal to 30 degrees), both flexion and rotation are anatomically normal, with rotation actually greater than normal. While acknowledging that the veteran experiences pain on range of motion, his disability picture does not rise to the level of severe limitation of motion as required for the next-higher 40 percent rating under the pre-amended regulations. The Board has considered whether the next- higher 40 percent rating under DC 5292 is warranted on the basis of additional functional limitation due to such factors such as pain, weakness, incoordination and/or fatigability but finds that only moderate functional limitation is shown as the October 2004 examiner noted no further loss of motion with these factors. Next, under DC 5295, a 40 percent rating is assigned for severe lumbosacral strain. While there was evidence of tenderness and moderate muscle spasm at the time of the October 2004 VA examination, there was no showing of listing of the whole spine to the opposite side, positive Goldwaite's sign (not reported), or abnormal mobility on forced motion (gait normal and no need for assistive devices). Outpatient treatment records reflect complaints of on-going back pain but do not reflect symptomatology consistent with a higher rating. Thus, there is no basis for a higher rating under DC 5295. With respect to the amended regulations, the Board notes that forward flexion of the thoracolumbar spine is not shown to be 30 degrees or less. As noted above, in an October 2004 VA examination, forward flexion was reported as 45 degrees. Additionally, a VA treatment record dated in June 2004 reflects a forward flexion of 45 degrees. Outpatient treatment records do not show flexion limited to 30 degrees or less. As forward flexion is greater than 30 degrees, a higher rating is not warranted. Furthermore, there is no objective or subjective evidence of the functional equivalent of limitation of flexion of less than 30. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Although the veteran has reported competent evidence of pain, he has not established how that pain functionally limits him to a specific degree. In addition, the October 2004 examiner noted that there was no further loss of motion following repetitive use due to pain. Next, as noted above, the level of range of motion does not support a finding of ankylosis of the entire thoracolumbar spine. As such, a higher rating is not warranted on this basis. Next, under Note (1), the Board must also consider whether separate evaluation neurologic manifestations under the appropriate diagnostic code. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2007). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2007). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2006). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2007). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, DC 8520 (2006). Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. Further, DC 8620 refers to neuritis of the sciatic nerve and DC Code 8720 refers to neuralgia of the sciatic nerve. After a review of the claims file, the Board finds that the competent evidence of record does not show any neurologic manifestations of the veteran's service-connected back disability. Specifically, upon examination in October 2004, his sensation was intact to light touch throughout his lower extremities and his motor strength was 5/5. Moreover, his deep tendon reflexes were 2+ and equal bilaterally and he had negative straight leg raise bilaterally. Notably, the examiner indicated that the veteran had no radiculopathy signs or symptoms during the examination. Outpatient treatment records do not reflect neurological impairment of his lower extremities. Therefore, there is no basis to separately service-connect neurological abnormalities of the lumbar spine. Additionally, the evidence reflects a diagnosis of "early" intervertebral disc disease. Therefore, the rating criteria concerning intervertebral disc syndrome will be considered. Further, the Board has considered whether DC 5243 provides a basis for an increased rating for degenerative disc disease. In addition to evaluating intervertebral disc syndrome (DC 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. Here, the evidence does not establish incapacitating episodes, as defined by Note 1 to DC 5243. The veteran has indicated that he experiences pain in the mornings and evenings, which subsides with activity. VA treatment records also reflect that he experiences pain daily with recurrent worsening exacerbations that interfere with his daily living. For example, at his October 2004 VA examination he reported that the pain was worse after sitting for a long period of time. Additionally, a VA treatment record dated in December 2003 noted that his back pain was stable, but that it was becoming harder for him to do his work. While the record reflects that the veteran experiences pain daily, the objective evidence does not reflect that he had any period of bedrest prescribed by a physician or as treatment by a physician - the hallmarks of a higher rating under DC 5243. Rather, he denied having any prolonged period of bedrest or missing work for due to his back to the VA examiner in October 2004. As such, while the Board acknowledges the veteran's on-going complaints of pain, the evidence does not support a higher rating on the basis of incapacitating episodes. As such, the evidence does not support a higher rating. In so finding, the Board has appropriately considered additional functional impairment per 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). VA treatment records from 2005 indicate that the veteran has spondylolisthesis and a herniated disc, but it did not cause significant spinal stenosis or any other problem. The objective examination showed normal spinal curvature and there was moderate muscle spasm and tenderness of the paraspinal muscles at the lumbar level. Painful motion of the thoracolumbar spine was noted upon examination but, the evidence as a whole simply does not reveal a disability picture more nearly approximating the next-higher 40 percent evaluation under the general rating formula. Thus, based on the analysis of those criteria set forth above, the evidence does not support more than a 20 percent evaluation for his service-connected low back disability under the appropriate pre-amended or amended regulations. The Board has also considered the veteran's statements asserting complaints of persistent back pain that has worsened since the 20 percent rating was assigned. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer medical opinions, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Although his statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. at 494-95; Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. In sum, throughout the entirety of the rating period on appeal, the currently-assigned 20 percent evaluation for a low back disability is appropriate and there is no basis for a higher rating. 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). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 is not warranted. 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). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in December 2002, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that the VCAA letter sent to the veteran in December 2002 does not meet the requirements of Vazquez-Flores and is not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, in an August 2004 statement of the case and April 2007 supplemental statement of the case, he was provided with the criteria to establish a higher rating and the provisions of 38 C.F.R. § 3.321 discussing the applicability of the rating schedule to his earning capacity, and the provisions regarding functional loss, painful motion, and how evidence is evaluated. Based on the evidence above, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, in his claim for a higher rating, he reflected that his wife assisted him with putting on his shoes and trousers, and the impact that his disability had on his job with bending, crawling, and stooping. Further, he related to the VA examiner the effect of his low back pain on his daily activities such as morning stiffness and sitting for long periods. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in October 2004 he was afforded a formal VA examination in conjunction with his claim. Additionally, he was scheduled for a VA examination in February 2007 but failed to report. It is well established that it is a claimant's responsibility to keep VA advised of his whereabouts in order to facilitate the conduct of medical inquiry. See Hyson v. Derwinski, 5 Vet. App. 262 (1993). Further, a claimant failing to report for a scheduled examination must show good cause for so doing. See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). The record in this case reveals that the veteran did not attend the examination scheduled in February 2007 and he has not provided any good cause for his actions. Nor did he report for a scheduled hearing before the Board in April 2008. Nevertheless, the Board has evaluated his claim based on the evidence of record. See 38 C.F.R. § 3.655 (2007); Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991); see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Therefore, 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 A rating in excess of 20 percent for spondylolisthesis of the lumbar spine is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs