Citation Nr: 0815179 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-00 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the cervical spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active duty service from August 1978 until August 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the veteran submitted evidence to the Board related to his sleep apnea claim. As this claim is not an appeal before the Board, the matter of service connection for sleep apnea is referred to the RO for appropriate action. The Board also notes that a November 2004 rating decision reopened the veteran's claim and granted service connection for degenerative arthritis of the lumbar spine, with a 10 percent disability evaluation. The veteran has not withdrawn his claim and is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). He also indicated that he is seeking to appeal the 10 percent rating in his VA Form 9, dated in December 2004. The issue of an initial rating entitlement to an increased rating for degenerative arthritis of the cervical spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's degenerative arthritis of the lumbar spine is manifested by forward flexion of the thoracolumbar spine of 90 degrees with pain at 90 degrees, lateral flexion bilaterally of 30 degrees, and rotation of 30 degrees bilaterally. CONCLUSION OF LAW The criteria for an initial evaluation in excess of a 10 percent disability evaluation for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71(a), Diagnostic Code 5242-5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist This appeal arises from disagreement with the initial evaluation following the grant of service connection for degenerative arthritis of the lumbar spine. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the service medical records and reports of his post- service treatment. He was also afforded a formal VA examination. Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, at the time of an initial rating, as is the situation in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service- connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Lumbar spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedular criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right lateral rotation from 0 to 30 degrees. C.F.R. § 4.71a. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Diagnostic Codes 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation, which would be the next applicable rating for a service-connected lumbar spine disability, would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation would be warranted with unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation would be warranted with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Merits of the Claim The veteran essentially contends that his service-connected degenerative arthritis of the lumbar spine is more severe than indicated by his 10 percent evaluation. A December 2003 letter from the veteran's private physician, Dr. D.A.S., found the veteran to have degenerative disc disease, confirmed by an MRI scan, at the L4-5 and L5-S1 levels. Dr. D.A.S. found it to be a wear and tear type of complaint extending back to his military duty. A February 2004 x-ray report, from Dr. R.J.B., found extremely mild changes that may be due to early degenerative disc disease; however, disc height was found to be preserved at all levels. The veteran was provided a VA examination in February 2004. He reported pain in his upper and lower back for over twenty years. He also reported pain four times a week, lasting about four hours each time, pain traveling to his hips, and pain of a squeezing, aching, oppressing, and sharp nature. He reports a pain level of six on a scale of one to ten. His pain could be elicited by physical activity and stress. It would also come by itself. He relieved pain with Motrin, heating pads, and massage, and could function without medication. He reported incapacitating episodes as often as two times a year, lasting two days. He has had no incidents of incapacitation for a total of no days the year before the examination. His functional impairment limited his bending, walking, and driving. He also reported having lost time from work twice. The examiner found the veteran's posture within normal limits and with a gait within normal limits. An examination of the thoracolumbar spine included no complaints of radiating pain on movement. Muscle spasm was absent. Tenderness was noted. There was negative straight leg raising bilaterally. His range of motion for the thoracolumbar spine included flexion from 0 to 90 degrees, with pain occurring at 90 degrees, extension from 0 to 30 degrees, bilateral flexion from 0 to 30 degrees, and bilateral rotation from 0 to 30 degrees. His range of motion was additionally limited by pain, lack of endurance, and pain or major functional impact. He was not additionally limited by fatigue, weakness, or incoordination. There was no ankylosis of the spine. There were no signs of intervertebral disc syndrome. The peripheral nerve examination was within normal limits. The neurological examination of the upper and lower extremities revealed motor function and sensory function within normal limits. His lumbar spine x-ray report showed degenerative arthritis. The examiner found the veteran to have degenerative arthritis of the cervical and lumbar spine. The examiner also noted that the veteran's ability to bend, stand, or sit for prolonged periods of time was impaired, but that he had no intervertebral disc syndrome. There were no signs of significant radiculopathy. The medical evidence of record does not show that the veteran's service-connected lumbar spine disorder manifests symptoms that meet the criteria for the next higher 20 percent rating. The evidence shows that forward flexion of the thoracolumbar spine was found to be greater than 60 degrees and have a combined range of motion greater than 120 degrees, a normal gait, and no ankylosis. It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flareups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 10 percent disability evaluation. The February 2004 examiner noted that the veteran was additionally limited by pain and lack of endurance, with pain as the major functional impact. Pain occurred at 90 degrees of flexion. No additional limitation was noted for fatigue, weakness, or incoordination. Therefore, even considering pain, the veteran does not meet the criteria for the next higher rating of 20 percent. The veteran's functional impairment as a result of flareups of symptomatology does not warrant a greater disability evaluation than already granted by the RO. The Board must evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. The February 2004 VA examiner found no signs of intervertebral disc syndrome. The peripheral nerve and neurological examinations were within normal limits. With respect to intervertebral disc syndrome, under Diagnostic Code 5243, based on incapacitating episodes, a 20 percent rating evaluation would require incapacitating episodes of a total duration of at least two weeks but less than four weeks during the past 12 months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a (2007). The February 2004 VA examination report specifically states that there were no sign of intervertebral disc syndrome. In any case, the veteran reported incapacitation for a total of two times a year, lasting two days and no incident or incapacitation for a total of no days the year before the examination. No evidence shows that the veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for her service-connected back disability. There is also no evidence that the veteran was ever hospitalized for his disability. The physician- prescribed bed rest and treatment is the defining criteria for a rating increase for intervertebral disc syndrome. Therefore, assuming arguendo that the veteran does have intervertebral disc syndrome, his symptoms are not shown to meet the criteria for a rating of 20 percent therefor based on the number of incapacitating episodes experienced by the veteran. The Board has taken into consideration VA outpatient treatment records not specifically identified herein. While these records show complaints of back pain, none of the records show that he meets the criteria for the next higher rating of 20 percent. In view of the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations, including 38 C.F.R. § 3.321(b)(1), have been considered, whether or not they were raised by the veteran, as required under Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that no exceptional or unusual factors are in evidence, such as marked interference with employment or frequent periods of hospitalization, which would warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An initial disability evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. REMAND The veteran filed an informal claim to reopen his back disorder claim in March 2002. A June 2003 rating decision denied reopening the claim. In correspondence received in October 2003 the veteran stated that he wished to appeal the denial of his June 2003 rating decision for his "back." The Board notes that this statement satisfies the requirements of a Notice of Disagreement (NOD). See 38 C.F.R. § 20.201. His back claim was subsequently granted in a November 2004 rating decision; the RO granted entitlement to service connection separately for degenerative arthritis of the lumbar spine and degenerative arthritis of the cervical spine, with a 10 percent evaluation for each disability. A VA Form 9, the first written statement associated with the claims file following the grant of service connection and dated in December 2004, disagreed with rating decision. This statement is construed as a timely NOD in regards to his cervical spine claim. To date, the veteran has not been issued a Statement of the Case (SOC) for the issue of his cervical spine disability, and under the circumstances the Board has no discretion and must remand this matter for issuance of an SOC. See Manlicon v. West, 12 Vet. App. 238 (1999); Fenderson v. West, 12 Vet. App. 119, 131-132 (1999). Accordingly, the case is REMANDED for the following action: A Statement of the Case should be issued to the veteran concerning the claim of degenerative arthritis of the cervical spine. The veteran should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider this issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs