Citation Nr: 0814887 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-39 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 20 percent for lower back strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from September 1988 to December 1989, and from January 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for lower back strain and assigned a 10 percent evaluation, effective December 12, 2003. In an October 2005 Supplemental Statement of the Case, the evaluation was increased to 20 percent, effective December 12, 2003. The veteran was scheduled for a Board video conference hearing in April 2008. The veteran failed to report for the scheduled hearing. FINDINGS OF FACT 1. Prior to September 1, 2005, the service-connected low back disability was manifested by limitation of forward flexion to 75 degrees. 2. As of September 1, 2005, the service-connected low back disability was manifested by limitation of forward flexion to 30 degrees. 3. As of May 22, 2007, the service-connected low back disability was not manifested by any limitation of forward flexion. CONCLUSIONS OF LAW 1. Prior to September 1, 2005, the criteria for assignment of a rating in excess of 20 percent for the service-connected lower back strain, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2007). 2. As of September 1, 2005, the criteria for assignment of a 40 percent evaluation, but no more, for the service-connected lower back strain have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2007). 3. As of May 22, 2007, the criteria for assignment of a rating in excess of 20 percent for the service-connected lower back strain, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening 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 the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice 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, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. Nevertheless, in this case, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as VA medical records are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was also afforded VA examinations in May 2004, September 2005 and May 2007. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them a statement of the case and supplemental statements of the case, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Criteria and Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. 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 General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher disability evaluations are assigned if there is ankylosis of the spine. 38 C.F.R. § 4.71a. 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. Note (1) directs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. 38 C.F.R. § 4.71a. The Board finds that a "staged" rating is warranted for the disability on appeal. At the time of a May 2004 VA examination, the range of motion of flexion of the back was from 0 to 80 degrees and, after repeated movements, the range of motion was from 0 to 75 degrees. This range of motion does not warrant a rating in excess of 20 percent, even upon consideration of pain on use or during flares. At the time of a September 1, 2005, VA examination, however, the range of motion of the spine was forward flexion from 0 to 30 degrees without pain and from 30 to 70 degrees with pain. The veteran was not able to forward flex past 70 degrees. There was no change as a result of testing for weakness, fatigability and incoordination. The Board finds that, when pain on use is taken into account, the range of motion of the veteran's forward spine flexion is limited to 30 degrees. A 40 percent evaluation is warranted when forward flexion is limited to 30 degrees or less. The Board finds that a 40 percent disability evaluation should be assigned based on the findings of the September 2005 VA examination. The last time the veteran's spine was examined for VA compensation and pension purposes was on May 22, 2007. At that time, the range of motion of the forward flexion of the spine was noted to be full from 0 to 90 degrees with pain at the extremes of the range of motion. Testing for pain, fatigue, weakness, and incoordination due to repetitive use revealed no change in the range of motion. The range of motion noted at the time of the May 2007 VA examination does not warrant a rating in excess of 20 percent. An increased rating is not warranted at the time of the May 2007 VA examination. As there is no evidence of record of the presence of ankylosis of the lumbar spine, an increased rating is not warranted based on this symptomatology. The VA examinations have demonstrated that the veteran has consistently been able to move her spine. At the time of the most recent VA examination, it was specifically noted that ankylosis was not present. Ratings of 40 percent, 50 percent and 100 percent are not warranted. The Board notes that 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), require us to consider the veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain. In the current case, the Board has taken into account the veteran's reports of pain on use as well as the VA examiners' findings regarding functional loss. This is the basis for the staged 40 percent evaluation based on the report of the September 2005 VA examination. There is no clinical evidence which indicates that the veteran's range of motion is limited more than described in the reports of the VA examinations. Note 1 of the General Rating Formula calls for a separate evaluation for any associated objective neurologic abnormalities. The Board finds that the competent evidence of record does not support a finding of neurologic abnormalities. At the time of the May 2004 VA examination, no pertinent complaints were recorded nor were any pertinent findings made with regard to neurological abnormalities associated with the service-connected low back disability. At the time of the September 2005 VA examination, the veteran complained of numbness and tingling of the left leg which occurred approximately once per month. She denied bowel or bladder incontinence. Physical examination at that time, however, revealed no sensory or motor deficits. The Board finds the veteran's allegations of numbness and tingling have not been objectively confirmed nor have they been linked to the service-connected back disability by competent evidence. The Board finds the report of the September 2005 VA examination does not support a determination that the service-connected back disability was manifested by any neurological abnormalities. At the time of the May 2007 VA examination, the veteran reported that she had back pain which radiated down into her left hip. However, physical examination failed to reveal any objective evidence of neurologic abnormalities. The Board finds that the veteran's allegation of pain radiating into her hip has not been objectively confirmed nor has the reported pain been linked to the service-connected low back disability. The Board finds the report of the May 2007 VA examination does not support a determination that the service-connected back disability was manifested by any neurological abnormalities. With regard to the criteria for rating intervertebral disc syndrome, the Board finds that there is insufficient symptomatology to warrant an increased rating. No pertinent history was reported at the time of the May 2004 VA examination with regard to the requirement for bed rest to treat the back disability. At the time of the September 2005 VA examination, the veteran reported that she did not experience any incapacitating episodes due to her back disability. At the time of the May 2007 VA examination, the veteran reported that, with regard to incapacitating episodes, she had seen her primary provider one time over the past year for her back. She did not actually report that she had any incapacitating episodes. There is no indication that she experienced incapacitating episodes having a total duration of four to six weeks in the past year. An increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating episodes is not warranted at any time during the appeal period. Additionally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. The evidence in this case fails to show that the veteran's low back disability now causes or has in the past caused marked interference with her employment, or that such has in the past or now requires frequent periods of hospitalization post-service rendering impractical the use of the regular schedular standards. Id. In September 2005, the veteran alleged that she had to stop work as a nursing assistant as a result of her back problems. She has not, however, submitted any evidence to support this allegation. The record further indicates that the veteran was able to obtain employment performing office work. The veteran reported at the time of the May 2007 VA examination that, while she experienced back pain during work, the pain did not stop her from performing any of her job duties. There is no evidence of record indicating that the veteran was hospitalized for back problems during the appeal period. In sum, there is no indication in the record of such an unusual disability picture that application of regular schedular standards is impractical. 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). In summary, the Board finds that a rating in excess of 20 percent is not warranted prior to September 1, 2005. From September 1, 2005 to May 21, 2007, a 40 percent evaluation is warranted based on the findings in the September 2005 VA examination. As of May 22, 2007, the date of the most recent VA examination, a 20 percent evaluation is warranted. ORDER Entitlement to a rating in excess of 20 percent prior to September 1, 2005, for the lower back strain is not warranted. The appeal is denied. Entitlement to a 40 percent evaluation, effective from September 1, 2005 to May 21, 2007, for the lower back strain, is granted, subject to the laws and regulations governing monetary awards. Entitlement to a rating in excess of 20 percent from May 22, 2007, for the lower back strain is not warrant. The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs