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