Citation Nr: 0815173	
Decision Date: 05/08/08    Archive Date: 05/14/08

DOCKET NO.  04-32 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial evaluation from October 1, 2002 
to January 3, 2007 in excess of 10 percent for service 
connected lumbar strain with degenerative disc disease.

2.  Entitlement to an initial evaluation from January 4, 2007 
in excess of 20 percent for service connected lumbar strain 
with degenerative disc disease.

3.  Entitlement to an initial compensable evaluation from 
October 1, 2002 to April 13, 2005 for gouty arthritis.

4.  Entitlement to an initial evaluation from April 13, 2005 
in excess of 20 percent for gouty arthritis.

5.  Entitlement to an initial evaluation from October 1, 2002 
to January 17, 2005 in excess of 10 percent for service 
connected hypertension.

6.  Entitlement to an initial evaluation from January 18, 
2005 to April 5, 2005 in excess of 20 percent for service 
connected hypertension.

7.  Entitlement to an initial evaluation from April 6, 2005 
in excess of 10 percent for service connected hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Layton, Associate Counsel


INTRODUCTION

The veteran served on active duty from June 1976 to June 
1979, and from March 1981 to September 2002.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2002 rating decision from 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Winston-Salem, North Carolina.  In pertinent part, the RO 
granted service connection for degenerative disc disease, 
lumbar spine, with strain and awarded an initial 10 percent 
rating.  The RO also granted service connection with 
noncompensable ratings for gouty arthritis and hypertension.  
All disability ratings were made effective from October 1, 
2002, one day after the veteran's separation from military 
service.  In a March 2004 decision, the initial evaluation of 
hypertension was increased to 10 percent with an effective 
date of October 1, 2002.  In March 2005, the veteran's 
hypertension evaluation was increased to 20 percent with an 
effective date of January 21, 2005.  The July 2007 
supplemental statement of the case increased the evaluation 
for gouty arthritis to 20 percent with an effective date of 
June 6, 2005 and the evaluation of lumbar strain to 20 
percent with an effective date of January 4, 2007.

The Board notes that the veteran submitted additional 
evidence after the final adjudication of his claim by the RO.  
In February 2008, the veteran waived RO consideration of his 
additional evidence.

As the veteran has perfected an appeal as to the initial 
evaluations assigned for these service-connected disorders, 
the Board has characterized these issues in accordance with 
the decision in Fenderson v. West, 12 Vet. App. 119, 126 
(1999) (appeals from original awards are not to be construed 
as claims for increased ratings), which requires 
consideration of the evidence since the effective date of the 
grant of service connection.  As Fenderson requires that the 
claims not be construed as claims for increased rating, the 
requirements of Vazquez-Flores v. Peake, No. 05-0355 (U.S. 
Vet. App. January 30, 2008) are not applicable to the present 
claim.


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issue on appeal was obtained.

2.  From October 1, 2002 to January 3, 2007, the veteran's 
lumbar strain was manifested by forward flexion to 80 degrees 
and extension to 30 degrees with objective evidence of pain.

3.  From January 4, 2007, the veteran's lumbar strain is 
manifest by forward flexion to 40 degrees with pain and 
extension to 20 degrees without pain.

4.  From October 1, 2002 to April 13, 2005, gouty arthritis 
was manifested by no evidence of unusual pressure points, 
deformity, swelling, pain, tenderness, or limited range of 
motion.

5.  From April 14, 2005, gouty arthritis is manifest by one 
or two active exacerbations a year in a well-established 
diagnosis.

6.  From October 1, 2002 to January 17, 2005, hypertension 
was manifested by a history of diastolic pressure 
predominantly 100 or more that required continuous medication 
for control.

7.  From January 18, 2005, to April 5, 2005, hypertension was 
manifest by diastolic pressure readings primarily between 110 
and 119.

8.  From April 6, 2005, hypertension is manifested by a 
history of diastolic pressure predominantly 100 or more that 
required continuous medication for control.


CONCLUSIONS OF LAW

1.  From October 1, 2002 to January 3, 2007, the criteria for 
a rating in excess of 10 percent rating for lumbar strain 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 
38 C.F.R. § 4.71a, Diagnostic Codes 5293 (before and after 
September 23, 2002), 5289, 5292, 5295 (before September 26, 
2003) and 5237, 5243 (after September 26, 2003).

2.  From January 4, 2007, the criteria for a rating in excess 
of 20 percent rating for lumbar strain have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Codes 5293 (before and after September 23, 2002), 
5289, 5292, 5295 (before September 26, 2003) and 5237, 5243 
(after September 26, 2003).

3.  From October 1, 2002 to April 13, 2005, the criteria for 
a compensable rating for gouty arthritis have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Codes 5002, 5017 (2007).

4.  From April 13, 2005, the criteria for a rating of 20 
percent, but no higher, for gouty arthritis have been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Codes 5002, 5017 (2007).

5.  From October 1, 2002 to January 17, 2005, the criteria 
for a rating in excess of 10 percent for hypertension have 
not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 
C.F.R. § 4.104, Diagnostic Code 7101 (2007).

6.  From January 18, 2005 to April 5, 2005, the criteria for 
a rating of 20 percent, but no higher, for hypertension have 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§ 4.104, Diagnostic Code 7101 (2007).

7.  From April 6, 2005, the criteria for a rating in excess 
of 10 percent for hypertension have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, 
Diagnostic Code 7101 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA 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; (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).  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).  

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the RO.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the RO's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the RO) see also 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 an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial RO decision by way of letters sent 
to the appellant in October 2003 and December 2004 that fully 
addressed all four notice elements.  The letters informed the 
appellant of what evidence was required to substantiate the 
claim and of the appellant's and VA's respective duties for 
obtaining evidence.  The appellant was also asked to submit 
evidence and/or information in his possession to the RO.  
Although the notice letters were not sent before the initial 
RO decision in this matter, the Board finds that this error 
was not prejudicial to the appellant because the actions 
taken by VA after providing the notice have essentially cured 
the error in the timing of notice.  Not only has the 
appellant been afforded a meaningful opportunity to 
participate effectively in the processing of his claim and 
given ample time to respond, but the RO also readjudicated 
the case by way of a supplemental statement of the case 
issued in July 2007 after the notice was provided.  For these 
reasons, it is not prejudicial to the appellant for the Board 
to proceed to finally decide this appeal as the timing error 
did not affect the essential fairness of the adjudication.

During the pendency of this appeal, the Court in 
Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006), found that the VCAA notice 
requirements applied to all elements of a claim.  An 
additional notice regarding these matters was sent to the 
veteran in March 2006.

Regarding the need to obtain additional evidence, we note 
that the veteran received VA examinations for rating purposes 
in April 2002, June 2005, and January 2007.  VA treatment 
records addressing the question at issue are of record.  The 
Board finds the available medical evidence is sufficient for 
an adequate determination.  There has been substantial 
compliance with all pertinent VA law and regulations and to 
move forward with the claim would not cause any prejudice to 
the appellant.

Laws and Regulations

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  The percentage ratings in the Rating 
Schedule represent, as far as can be practicably determined, 
the average impairment in earning capacity resulting from 
diseases and injuries incurred or aggravated during military 
service and their residual conditions in civil occupations.  
38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007).

The Court has held that a claim for a higher rating when 
placed in appellate status by disagreement with the original 
or initial rating award (service connection having been 
allowed, but not yet ultimately resolved), remains an 
"original claim" and is not a new claim for an increased 
rating.  See Fenderson v. West, 12 Vet. App. 119 (1999).  In 
such cases, separate compensable evaluations may be assigned 
for separate periods of time if such distinct periods are 
shown by the competent evidence of record during the pendency 
of the appeal, a practice known as "staged" ratings.  Id. 
at 126.

It is the responsibility of the rating specialist to 
interpret reports of examination in light of the whole 
recorded history, reconciling the various reports into a 
consistent picture so that the current rating may accurately 
reflect the elements of disability present.  38 C.F.R. § 4.2 
(2007).  Consideration of factors wholly outside the rating 
criteria constitutes error as a matter of law.  Massey v. 
Brown, 7 Vet. App. 204, 207-08 (1994).  Evaluation of 
disabilities based upon manifestations not resulting from 
service- connected disease or injury and the pyramiding of 
ratings for the same disability under various diagnoses are 
prohibited.  38 C.F.R. § 4.14 (2007).

The Court has held that where the determinative issue 
involves medical causation or a medical diagnosis, competent 
medical evidence is required.  Grottveit v. Brown, 5 Vet. 
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 
492 (1992).  VA is free to favor one medical opinion over 
another provided if it offers an adequate basis for doing so.  
See Owens v. Brown, 7 Vet. App. 429 (1995).

When there is a question as to which of two evaluations to 
apply, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating, otherwise the lower rating shall be 
assigned.  38 C.F.R. § 4.7 (2007).

It is the defined and consistently applied policy of the 
Department of Veterans Affairs to administer the law under a 
broad interpretation, consistent, however, with the facts 
shown in every case.  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 claimant.  38 C.F.R. § 4.3 (2006)

Lumbar Strain with Degenerative Disc Disease

During the pendency of veteran's claim, the criteria for 
intervertebral disc disease, 38 C.F.R. § 4.71a, Diagnostic 
Code 5293, were revised effective September 23, 2002.  See 67 
Fed. Reg. 54,345 (Aug. 22, 2002) ("revised disc 
regulations").  Further, the remaining spinal regulations 
were amended and the diagnostic codes renumbered in September 
2003.  See 68 Fed. Reg. 51,454 (Aug. 27, 2003) ("revised 
spinal regulations").  

VA's General Counsel, in a precedent opinion, has held that 
when a new regulation is issued while a claim is pending 
before VA, unless clearly specified otherwise, VA must apply 
the new provision to the claim from the effective date of the 
change as long as the application would not produce 
retroactive effects.  VAOPGCPREC 7-2003 (Nov. 19, 2003); 
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  

5292
Spine, limitation of motion of, lumbar:

Severe
40

Moderate
20

Slight
10
38 C.F.R. § 4.71a, Diagnostic Code 5292 (prior to September 
26, 2003).


5295
Lumbosacral strain:

Severe; with listing of the whole spine to opposite 
side, positive Goldthwaite's sign, marked limitation 
of forward bending in standing position, loss of 
lateral motion with osteoarthritic changes, or 
narrowing or irregularity of joint space, or some of 
the above with abnormal mobility on forced motion.
4
0

With muscle spasm on extreme forward bending, 
unilateral loss of lateral spine motion, unilateral, 
in standing position
2
0

With characteristic pain on motion
1
0

With slight subjective symptoms only
0
38 C.F.R. § 4.71a, Diagnostic Codes 5294, 5295 (prior to 
September 26, 2003).

Effective September 23, 2002, the rating criteria for 
intervertebral disc syndrome was revised as follows:

5293
Intervertebral disc syndrome:
Evaluate intervertebral disc syndrome (preoperatively 
or postoperatively) either on the total duration of 
incapacitating episodes over the past 12 months or by 
combining under Sec. 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.

With incapacitating episodes having a total duration of 
at least six weeks during the past 12 months

60
With incapacitating episodes having a total duration of 
at least four weeks but less than six weeks during the 
past 12 months

40
With incapacitating episodes having a total duration of 
at least two weeks but less than four weeks during the 
past 12 months

20
With incapacitating episodes having a total duration of 
at least one week but less than two weeks during the 
past 12 months

10
Note (1): For purposes of evaluations under 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 orthopedic and neurologic 
manifestations" means orthopedic and neurologic signs and 
symptoms resulting from intervertebral disc syndrome that 
are present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic 
manifestations, evaluate orthopedic disabilities using 
evaluation criteria for the most appropriate orthopedic 
diagnostic code or codes. Evaluate neurologic disabilities 
separately using criteria for the most appropriate 
neurologic diagnostic code or codes.
Note (3): If intervertebral disc syndrome is present in 
more than one spinal segment, provided that the effects in 
each spinal segment are clearly distinct, evaluate each 
segment on the basis of chronic orthopedic and neurologic 
manifestations or incapacitating episodes, whichever method 
results in a higher evaluation for that segment.
38 C.F.R. § 4.71a, Diagnostic Code 5293 (Effective September 
23, 2002).

Effective September 26, 2003, the rating criteria for the 
spine were revised again:

5235
Vertebral fracture or dislocation
General 
Rating 
Formula
5236
Sacroiliac injury and weakness

5237
Lumbosacral or cervical strain

5238
Spinal stenosis

5239 
   
Spondylolisthesis or segmental 
instability     

5240
Ankylosing spondylitis

5241 
   
Spinal fusion    

5242
Degenerative arthritis of the spine 
(see also diagnostic code 5003) 

5243
***Intervertebral disc syndrome

***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 under Sec. 4.25. 

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): 
 
 
Ratin
g
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.  
Unfavorable ankylosis of the entire spine 
100
Unfavorable ankylosis of the entire thoracolumbar 
spine 
50
Unfavorable ankylosis of the entire cervical spine; 
or, forward flexion of the thoracolumbar spine 30 
degrees or less; or, favorable ankylosis of the entire 
thoracolumbar spine 
40
Forward flexion of the cervical spine 15 degrees or 
less; or, favorable ankylosis of the entire cervical 
spine 
30
Forward flexion of the thoracolumbar spine greater 
than 30 degrees but not greater than 60 degrees; or, 
forward flexion of the cervical spine greater than 15 
degrees but not greater than 30 degrees; or, the 
combined range of motion of the thoracolumbar spine 
not greater than 120 degrees; or, the combined range 
of motion of the cervical spine not greater than 170 
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 
20
Forward flexion of the thoracolumbar spine greater 
than 60 degrees but not greater than 85 degrees; or, 
forward flexion of the cervical spine greater than 30 
degrees but not greater than 40 degrees; or, combined 
range of motion of the thoracolumbar spine greater 
than 120 degrees but not greater than 235 degrees; or, 
combined range of motion of the cervical spine greater 
than 170 degrees but not greater than 335 degrees; or, 
muscle spasm, guarding, or localized tenderness not 
resulting in abnormal gait or abnormal spinal contour; 
or, vertebral body fracture with loss of 50 percent or 
more of the height 
10
Note: (1) Evaluate any associated objective neurologic 
abnormalities, including, but not limited to, bowel or 
bladder impairment, separately, under an appropriate 
diagnostic code.  
Note: (2) (See also Plate V.) For VA compensation purposes, 
normal forward flexion of the cervical spine is zero to 45 
degrees, extension is zero to 45 degrees, left and right 
lateral flexion are zero to 45 degrees, and left and right 
lateral rotation are zero to 80 degrees. Normal forward 
flexion of the thoracolumbar spine is zero to 90 degrees, 
extension is zero to 30 degrees, left and right lateral 
flexion are zero to 30 degrees, and left and right lateral 
rotation are zero to 30 degrees. The combined range of motion 
refers to the sum of the range of forward flexion, extension, 
left and right lateral flexion, and left and right rotation. 
The normal combined range of motion of the cervical spine is 
340 degrees and of the thoracolumbar spine is 240 degrees.  
The normal ranges of motion for each component of spinal 
motion provided in this note are the maximum that can be used 
for calculation of the combined range of motion.  
Note: (3) In exceptional cases, an examiner may state that 
because of age, body habitus, neurologic disease, or other 
factors not the result of disease or injury of the spine, the 
range of motion of the spine in a particular individual 
should be considered normal for that individual, even though 
it does not conform to the normal range of motion stated in 
Note (2). Provided that the examiner supplies an explanation, 
the examiner's assessment that the range of motion is normal 
for that individual will be accepted.  
Note: (4) Round each range of motion measurement to the 
nearest five degrees.  
Note: (5) 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.  
Note: (6) Separately evaluate disability of the thoracolumbar 
and cervical spine segments, except when there is unfavorable 
ankylosis of both segments, which will be rated as a single 
disability. 
38 C.F.R. § 4.71a (effective September 26, 2003).

Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes
524
3
Intervertebral disc syndrome
Ratin
g

With incapacitating episodes having a total 
duration of at least 6 weeks during the past 12 
months 
60

With incapacitating episodes having a total 
duration of at least 4 weeks but less than 6 
weeks during the past 12 months 
40

With incapacitating episodes having a total 
duration of at least 2 weeks but less than 4 
weeks during the past 12 months 
20

With incapacitating episodes having a total 
duration of at least one week but less than 2 
weeks during the past 12 months 
10
Note (1): For purposes of evaluations 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. 
Note (2): If intervertebral disc syndrome is present in 
more than one spinal segment provided that the effects in 
each spinal segment are clearly distinct evaluate each 
segment on the basis of incapacitating episodes or under 
the General Rating Formula for Diseases and Injuries of the 
Spine, whichever method results in a higher evaluation for 
that segment. 
   
38 C.F.R. § 4.71a, Plate V

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, and 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 
(2007).  "[F]unctional loss due to pain is to be rated at 
the same level as the functional loss when flexion is 
impeded."  Schafrath v. Derwinski, 1 Vet. App. 589, 592 
(1993).  The intent of the schedule is to recognize painful 
motion with joint or periarticular pathology as productive of 
disability.  It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  Crepitation either in the soft tissues 
such as the tendons or ligaments, or crepitation within the 
joint structures should be noted carefully as points of 
contact which are diseased.  38 C.F.R. § 4.59 (2007).

Factual Background and Analysis

Service treatment records show that in January 1996, the 
veteran received a diagnosis of degenerative joint disease of 
the spine.

Prior to his separation from service, the veteran was 
afforded a VA fee-basis physical examination in April 2002.  
A VA fee-basis X-ray study from April 2002 revealed disc 
space narrowing with very mild endplate osteophyte formation 
at L5-S1.  During the April 2002  VA fee-basis physical 
examination, the veteran reported completing 35 parachute 
jumps while on active duty.  He stated that he had 
experienced back pain since 1994.  On objective examination 
it was noted that the paraspinal muscles were not in spasm.  
No muscle atrophy was identified.  Sensory perception and 
deep tendon reflexes were within normal limits.  Flexion was 
to 80 degrees with pain.  Extension was to 30 degrees with 
pain.  Right and left lateral motion was to 40 degrees.  
Right and left rotation was to 35 degrees.  It was noted that 
weakness, lack of endurance or incoordination did not further 
impact the ranges of motion.  The examiner opined that the 
veteran had lumbar strain and degenerative disc disease.

In May 2003 the veteran stated that he had paid out of his 
own pocket for chiropractic visits.  He recounted constant 
pain.  He said he was limited in the amount of weight he 
could lift or length of time he could remain in a single 
position.

The veteran stated in April 2004 that the military never 
identified his spinal injury.  He said that his previous 
evaluation did not consider his constant pain, inability to 
lift objects, and inability to sit or stand for any length of 
time.  He stated that a sneeze or muscle spasm would cause 
him to drop to his knees.  He said he experienced constant 
back pain.

On VA medical examination of the lumbar spine in 
January 2007, the veteran complained of constant, nagging 
pain.  He reported severe flares every couple of weeks, 
lasting a couple days.  He reported no radiation of pain.  
The examiner noted no incapacitating episodes for the 
thoracolumbar region during the previous 12 months.  The 
veteran's posture and gait were noted to be normal.  No 
muscle spasm or tenderness was observed.  Flexion was to 40 
degrees with pain at 40 degrees.  Extension was to 20 degrees 
without pain.  Lateral bending to the right was to 20 degrees 
without pain.  Lateral bending to the left was to 20 degrees 
with pain at 20 degrees.  Rotation to the right and left was 
to 30 degrees without pain.  It was noted that with 
repetition of the lumbar motions, there was no loss of motion 
secondary to pain, weakness, or lack of endurance.  The 
examiner opined that the veteran had degenerative disc 
disease of the lumbar spine with no significant effects on 
his usual occupation.  It was also noted that there were 
moderate effects on chores, exercise, traveling, and 
dressing.

Based on the evidence of record, the Board finds that from 
October 1, 2002 to January 3, 2007, the criteria for a rating 
in excess of 10 percent rating for lumbar strain have not 
been met.  None of the evidence of record shows ankylosis of 
the spine, recurring attacks of intervertebral disc syndrome, 
muscle spasm on extreme forward bending, or unilateral loss 
of lateral spine motion in the standing position during this 
time period.  According to the symptoms reported during the 
April 2002 fee-basis VA examination, the veteran's lower back 
symptoms could best be described as slight.  Therefore, under 
the rating criteria in effect prior to September 26, 2003, a 
rating in excess of 10 percent is not warranted.  See 
38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 
(before September 26, 2003).
A rating in excess of 10 percent from October 1, 2002 to 
January 3, 2007 would also not be warranted under the rating 
criteria in effect after September 26, 2003.  According to 
the April 2002 fee-basis VA examination, the veteran did not 
have forward flexion of less than 60 degrees, a combined 
range of motion of the thoracolumbar spine less than 120 
degrees, or muscle spasm severe enough to result in an 
abnormal gait or abnormal spinal contour.  Also, the evidence 
did not show that the veteran experienced incapacitating 
episodes having a total duration of at least two weeks during 
a 12 month period.  Thus, a rating in excess of 10 percent is 
not warranted from October 1, 2002 to January 3, 2007.  See 
38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2007).

From January 4, 2007, the Board finds that a rating in excess 
of 20 percent for lumbar strain is not warranted.  The 
January 2007 VA examination did not reveal forward flexion of 
less than 30 degrees or favorable ankylosis of the entire 
thoracolumbar spine.  No incapacitating episodes were noted.  
The examiner described the effect on the veteran's daily 
activities as moderate, not severe.  Thus, under both the old 
and new rating criteria for the spine, a rating in excess of 
20 percent is not warranted from January 4, 2007.  See 
38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 
(before September 26, 2003), and 5237, 5243 (after 
September 26, 2003).

The Board finds that the service-connected lumbar strain is 
not so unusual or exceptional as to render impractical the 
application of the regular schedular standards at any time 
during the pendency of the evaluation period.  38 C.F.R. 
§ 3.321(b)(1).  In this regard, the Board notes that the 
disorder has not necessitated frequent periods of 
hospitalization.  There is no objective evidence that it has 
resulted in marked interference with his employment.

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the veteran's claim.

Gouty Arthritis

5002
Arthritis rheumatoid (atrophic) 

As an active process:



With constitutional manifestations 
associated with active joint involvement, 
totally incapacitating
100


Less than criteria for 100% but with weight 
loss and anemia productive of severe 
impairment of health or severely 
incapacitating exacerbations occurring 4 or 
more times a year or a lesser number over 
prolonged periods
60


Symptom combinations productive of definite 
impairment of health objectively supported 
by examination findings or incapacitating 
exacerbations occurring 3 or more times a 
year
40


One or two exacerbations a year in a well-
established diagnosis
10

For chronic residuals:



For residuals such as limitation of motion 
or ankylosis, favorable or unfavorable, 
rate under the appropriate diagnostic codes 
for the specific joints involved. Where, 
however, the limitation of motion of the 
specific joint or joints involved is 
noncompensable under the codes a rating of 
10 percent is for application for each such 
major joint or group of minor joints 
affected by limitation of motion, to be 
combined, not added under diagnostic code 
5002. Limitation of motion must be 
objectively confirmed by findings such as 
swelling, muscle spasm, or satisfactory 
evidence of painful motion.


NOTE: The ratings for the active process will not 
be combined with the residual ratings for 
limitation of motion or ankylosis.  Assign the 
higher evaluation.

38 C.F.R  4.71a, Diagnostic Code 5002 (2007)

5017
Gout

The diseases under diagnostic codes 5013 through 
5024 will be rated on limitation of motion of 
affected parts, as arthritis, degenerative, 
except gout which will be rated under diagnostic 
code 5002.

38 C.F.R. 4.71a, Diagnostic Code 5017 (2007).

Factual Background and Analysis
 
Service treatment records show that in August 1996, the 
veteran complained of pain in his right foot after a 
parachute jump.  An X-ray film of the right foot revealed no 
evidence of fracture, dislocation, arthritic or inflammatory 
change.  In December 1998 and in March 1999 , the veteran 
again complained of right foot pain.  A An August 2001 
treatment note indicated that the veteran had gouty 
arthritis.  At a follow-up visit in September 2001, the 
veteran had his medications refilled and stated that he was 
doing "great" with his medication.  A service examiner 
noted in August 2002 that the veteran's gout was not 
currently active.

On VA fee-basis examination in April 2002, the veteran 
reported foot pain since 1992.  He said that the pain 
affected the top of his feet and descended to his toes.  The 
condition did not affect his posture or gait.  X-rays studies 
of the right and left feet were noted to be normal.  The 
examiner stated that both feet were normal in outline and 
symmetric in form and function.  No heat, redness or 
tenderness was observed.  It was noted that movement was not 
compromised.  No sensory or vascular disturbance was 
identified.  The uric acid level was noted to be high at 7.9.  
The examiner stated that there was no pathology to render a 
diagnosis.

The veteran stated in April 2004 that he couldn't say with 
confidence that his disorder was gout.  He had seen military 
physicians about his right foot since 1988.  He reported a 
constant pain in his right foot.  He indicated that his pain 
limited the types of shoes he could wear.

In January 2005, the veteran presented a swollen right foot 
to a VA examiner.  An X-ray study revealed no bony or soft 
tissue manifestations of gout.  The impression was vascular 
wall calcifications characteristic of diabetes mellitus.

A VA podiatrist noted in April 2005 that the veteran 
complained of pain in his right foot.  The examiner observed 
pain on palpation around the forefoot and opined that the 
veteran had gouty arthritis.

In April 2005 the veteran stated that early army physicians 
failed to identify and treat his gout properly.  He had been 
placed on a new medication and was in pain.  He had been 
given special inserts for his shoes.

A VA treatment note from June 2005 indicates that the veteran 
had intermittent pain from his gout.  The examiner stated 
that per instructions from podiatry the veteran would start 
taking Allopurinol.  A follow-up note nine days later shows 
that the gout pain remained.  The veteran was advised to 
continue wearing his shoe inserts.

On VA examination in June 2005, the veteran said that he had 
chronic pain in both feet.  His pain was aggravated by 
walking.  He reported that his foot swelled a couple of times 
a week.  He reported attacks of gout once a month with 
swelling, redness and tenderness.  He said that he was 
employed doing administrative work and had lost a week from 
work in the past six months.  He said that he continued to 
work in spite of the pain.  He said that he had not been able 
to do any kind of vigorous activities.  He reported no 
problems with his activities of daily living.

On objective examination, the examiner noted pain.  It was 
observed that the veteran had a full range of motion of both 
the toes and the feet.  At the ankle, the veteran could 
dorsiflex 10 degrees bilaterally and flex 45 degrees 
bilaterally without significant difficulty.  It was noted 
that there was no evidence of significant pain on motion.  
The examiner stated that there was no obvious edema and no 
instability or weakness of the toes.  In the past, the uric 
acid levels had been elevated.  The examiner indicated that 
X-rays reports present in the claims file were all noted to 
be normal.  However, the examiner observed that a podiatrist 
made a note in the claims file that an X-ray film taken in 
April of 2005 showed X-ray changes consistent with gouty 
arthritis.  The diagnosis was gout with gouty arthritis of 
the feet and residuals.

A VA X-ray study from August 2005 revealed minimal 
degenerative changes and a small calcaneal spur.

The veteran reported during a January 2007 VA examination 
that he had seven or eight episodes of gout in the previous 
year.  Each episode lasted from two days to three weeks with 
severe pain, swelling, redness, and heat.  He said he could 
not walk during the attacks.  The examiner noted a normal 
gait and no evidence of abnormal weight bearing.  No 
tenderness or painful motion was observed.  The diagnosis was 
gout, episodic, affecting both feet.  It was noted that the 
veteran said he missed about a week of work during the 
previous year due to gout attacks.  It was also noted that 
the veteran could walk and complete activities of daily 
living when the veteran was not having an attack.

Based on the evidence of record, the Board finds that from 
October 1, 2002 to April 13, 2007, the criteria for a 
compensable rating in excess for gouty arthritis have not 
been met.  The Board notes that the veteran had a diagnosis 
of gouty arthritis in August 2001 while he was still in the 
service.  However, the VA fee-basis examiner in April 2002 
found that there was no pathology to make a diagnosis.  He 
also noted that movement was not compromised.  A service 
examiner noted in August 2002 that while the veteran had 
gout, it was not currently active.  A January 2004 VA X-ray 
film revealed no manifestations of gout.  As the veteran's 
gout was not active and there was no competent medical 
evidence of a limited range of motion, a compensable 
evaluation for gouty arthritis from October 1, 2002, to April 
13, 2005, is not warranted.  See 38 C.F.R. § 4.71a, 
Diagnostic Codes 5002, 5017 (2007).

On April 14, 2005, a VA podiatrist noted gouty arthritic 
changes.  The diagnosis of gouty arthritis was further 
established on VA examination in June 2005.  However, there 
is no competent medical evidence of incapacitating 
exacerbations occurring three or more times a year.  Although 
the veteran reported during a VA examination in January 2007 
that he experienced seven or eight incapacitating 
exacerbations during the previous year, there are no medical 
diagnoses of the incapacitating exacerbations to support his 
assertions.  Additionally, the examination findings from 
June 2005 and January 2007 do not objectively support a 
finding of a definite impairment of health.  While it was 
noted that the veteran complained of pain and swelling, no 
edema or tenderness was observed.  Thus, a rating of 20 
percent, but no higher, is warranted for gouty arthritis from 
April 14, 2005.  See 38 C.F.R. § 4.71a, Diagnostic Codes 
5002, 5017 (2007).

The veteran can attest to factual matters of which he had 
first-hand knowledge, e.g., experiencing pain.  See 
Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  
However, the veteran as a lay person has not been shown to be 
capable of making medical conclusions, thus, his statements 
regarding diagnosis are not competent.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 495 (1992).  Thus, while the 
veteran is competent to report what comes to him through his 
senses, he does not have medical expertise.  See Layno v. 
Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a 
competent opinion regarding diagnosis.

The Board finds that the service-connected gouty arthritis is 
not so unusual or exceptional as to render impractical the 
application of the regular schedular standards at any time 
during the pendency of the evaluation period.  38 C.F.R. 
§ 3.321(b)(1).  In this regard, the Board notes that the 
disorder has not necessitated frequent periods of 
hospitalization.  Although the veteran has reported missing a 
week of work due to a gout exacerbation, the Board finds that 
there is no objective evidence that the gout has resulted in 
marked interference with his employment.  However, pain and 
some degree of interference with employment are taken into 
account within the regular evaluation criteria.  Therefore, 
referral by the RO to the Chief Benefits Director of VA's 
Compensation and Pension Service, under 38 C.F.R. § 3.321, is 
not warranted.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

Hypertension

7101
Hypertensive vascular disease (hypertension and 
isolated systolic hypertension)

Diastolic pressure predominantly 130 or more
60

Diastolic pressure predominantly 120 or more
40

Diastolic pressure predominantly 110 or more, or; 
systolic pressure predominantly 200 or more
20

Diastolic pressure predominantly 100 or more, or; 
systolic pressure predominantly 160 or more, or; 
minimum evaluation for an individual with a 
history of diastolic pressure predominantly 100 
or more who requires continuous medication for 
control
10

NOTE 1: Hypertension or isolated systolic 
hypertension must be confirmed by readings taken 
two or more times on at least three different 
days. For purposes of this section, the term 
hypertension means that the diastolic blood 
pressure is predominantly 90mm. or greater, and 
isolated systolic hypertension means that the 
systolic blood pressure is predominantly 160mm. 
or greater with a diastolic blood pressure of 
less than 90mm.


NOTE 2: Evaluate hypertension due to aortic 
insufficiency or hyperthyroidism, which is 
usually the isolated systolic type, as part of 
the condition causing it rather than by a 
separate evaluation.


NOTE 3: Evaluate hypertension separately from 
hypertensive heart disease and other types of 
heart disease.

38 C.F.R. § 4.104, Diagnostic Code 7101 (2007)

Factual Background and Analysis
 
Service treatment records show that beginning in 
September 2001, hypertension was diagnosed and Atenelol was 
prescribed.  In May 2002, a service examiner said that the 
hypertension was controlled by medication, and the blood 
pressure reading was 135/75.

On VA fee-basis medical examination in April 2002, the 
veteran reported that he started taking medication in 1996 
for high blood pressure.  Blood pressure readings at the 
examination were 140/95, 136/91, and 133/91.  The examiner 
noted that the current readings showed fairly good control of 
his blood pressure except that the diastolic pressures were 
above desirable levels.  It was observed that there were no 
established complications of hypertension.

VA outpatient records show that in March 2003, the veteran's 
blood pressure readings were 150/80 and 140/80.  Three days 
later, the reading was 161/96.  A June 2003 notes state that 
the pressure was 140/90 and 142/90.  A reading of 145/93 was 
recorded in February 2004.  In August 2004, the readings were 
132/75 and 140/90.

A series of blood pressure documented over a period of a week 
in January 2005 were recorded as 140/100, 150/110, 132/105, 
157/106, 122/87, 141/102, 140/101, 158/107. 128/97, 166/108, 
166/118, 168/116, 142/100, 150/100, and 160/102.  An 
additional three-day series from February 2005 recorded blood 
pressure as 168/124, 162/118, 162/118, 168/124, 180/110, and 
160/118.

In April 2005, a VA examiner noted that the veteran's blood 
pressure was 179/90, 140/90, 162/93, and 166/93.  

A three-week series recorded from May 2005 to June 2005 were 
as follows: 110/90, 102/72, 108/86, 90/60, 108/76, 108/78, 
102/78, 104/88, 110/72, 118/82, 130/106, 120/104, 130/88, 
107/88, 112/86, 124/88, 110/74, 104/82, 110/70, 130/108, and 
120/90.  

A two-week series of readings from June 2005 were recorded as 
114/92, 132/92, 120/80, 124/80, 132/90, 140/102, 136/92, 
138/78, 124/82, 148/98, 150/108, 136/96, 150/110, 162/94, 
140/98, 150/100, 160/112, 140/104, 152/110, and 152/88.  

A July 2005 series conducted over 31/2 weeks noted findings of 
118/90, 140/100, 132/90, 138/104, 116/86, 130/96, 158/100, 
130/90, 132/94, 150/98, 140/90, 138/98, 132/100, 122/98, 
134/100, 118/80, 140/80, and 140/110.  

Over a period of about two-weeks in August 2005, a VA 
examiner recorded readings of 138/100, 130/94, 138/98, 
160/110, 142/98, 140/98, 148/110, 132/78, 151/91, 126/76, 
143/85, 145/86, 131/79, 140/79, 156/88, 159/92, 165/99, 
134/78, 122/92, 121/72, 138/88, 120/65, and 154/104.  

Readings of 124/100, 116/86, 138/98, 134/100, 134/94, 
164/106, 147/89, 135/81, and 139/85 were recorded as a four-
day series in September 2005.

A treatment record from November 2005 indicated that the 
veteran's blood pressure was 125/63.  In December 2005 it was 
noted as 162/99.  A March 2006 note indicated that it was 
141/79.  A reading of 145/79 was noted in August 2006.  An 
October 2006 record indicated that the blood pressure was 
151/78.

On VA examination in January 2007, it was noted that the 
veteran's blood pressure had been running in the 140s-
150s/90s.  Blood pressure at the time of the examination was 
recorded to be 153/115.  The diagnosis given was 
hypertension.  The examiner mentioned that there was no loss 
of work associated with this disorder except for occasional 
doctor's appointments.

Based on the evidence of record, the Board finds that from 
October 1, 2002 to January 17, 2005, hypertension was 
manifested by a history of diastolic pressure predominantly 
100 or more that required continuous medication for control.  
The record shows that the veteran began controlling his 
hypertension with medication in the mid-1990s while on active 
duty.  However, up through January 17, 2005, none of the 
diastolic pressure readings were 120 or above as is required 
for a rating in excess of 10 percent.  Therefore, from 
October 1, 2002, to January 17, 2005, a rating in excess of 
10 percent for hypertension is not warranted.  See 38 C.F.R. 
§ 4.104, Diagnostic Code 7101 (2007).

From January 18, 2005, to April 5, 2005, the record shows 
that the veteran's diastolic pressure readings were primarily 
above 120.  However, none of the readings were 130 or above 
as is required for a rating in excess of 20 percent.  
Therefore, from January 18, 2005, to April 5, 2005, a rating 
of 20 percent, but no higher, is warranted.  See 38 C.F.R. 
§ 4.104, Diagnostic Code 7101 (2007).

From April 6, 2005, the record shows that the veteran's 
diastolic pressure readings have been primarily between 110 
and 119.  Although a few scattered readings have been above 
120, a few scattered readings does not comprise the 
consistent trend required for a rating in excess of 10 
percent by the rating schedule.  The majority of consistent 
readings from April 6, 2005 to the end of the claims file are 
of diastolic readings from below 100; however, the veteran is 
on continuous medication.  Therefore, from April 6, 2005, a 
rating of 10 percent, but no higher, is warranted.  See 38 
C.F.R. § 4.104, Diagnostic Code 7101 (2007).

The Board finds that the service-connected hypertension is 
not so unusual or exceptional as to render impractical the 
application of the regular schedular standards at any time 
during the pendency of the evaluation period.  38 C.F.R. 
§ 3.321(b)(1).  In this regard, the Board notes that the 
disorder has not necessitated frequent periods of 
hospitalization.  Additionally, the January 2007 VA examiner 
noted that the hypertension has not resulted in marked 
interference with his employment.

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the veteran's claim.
	(CONTINUED ON NEXT PAGE)





ORDER

Entitlement to an initial evaluation from October 1, 2002 to 
January 3, 2007 in excess of 10 percent for service connected 
lumbar strain with degenerative disc disease is denied.

Entitlement to an initial evaluation from January 4, 2007 in 
excess of 20 percent for service connected lumbar strain with 
degenerative disc disease is denied.

Entitlement to an initial compensable evaluation from October 
1, 2002 to April 13, 2005 for gouty arthritis is denied.

Entitlement to an initial evaluation from April 13, 2005 of 
20 percent, but no higher, for gouty arthritis is granted, 
subject to the regulations governing the payment of monetary 
awards.

Entitlement to an initial evaluation from October 1, 2002 to 
January 17, 2005 in excess of 10 percent for service 
connected hypertension is denied.

Entitlement to an initial evaluation from January 18, 2005 to 
April 5, 2005 of 20 percent, but no higher, for service 
connected hypertension is granted, subject to the regulations 
governing the payment of monetary awards.

Entitlement to an initial evaluation from April 6, 2005 in 
excess of 10 percent for service connected hypertension is 
denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs