Citation Nr: 0815196 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-07 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from November 1973 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine. The veteran was scheduled for a Board hearing in April 2008, but failed to appear or indicate any desire to reschedule. The last supplemental statement of the case dated in November 2007 notes that the present disability rating for the spine is 10 percent. This is considered an error, as an August 2004 rating decision reflects a continuation of a 20 percent rating; a February 2005 statement of the case reflects a continuation of a 20 percent rating; a November 2006 supplemental statement of the case reflects a continuation of a 20 percent rating; and there is no rating decision or statement of the case addressing a decrease in rating from 20 percent. Therefore, the issue is correct as noted on the cover page. FINDING OF FACT The veteran's lumbar spine degenerative joint disease is manifested by no more than 45 degrees of limited forward flexion and functional impairment due to pain, with no objective findings of incapacitating episodes or neurological impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5010 to 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2004. The RO provided the appellant with notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006) in March 2006, subsequent to the initial adjudication. While the second notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in supplemental statements of the case dated in November 2006 and November 2007, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims, and also notified the veteran to submit evidence showing that his disability had worsened, how the disability affects his employment, and the general rating schedule for assigning disability ratings. However, VA's duty to notify the veteran of the information and evidence necessary to substantiate the claim has not been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. The Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication of the increased rating claim for a lumbar spine disability, as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id. Specifically, the veteran described on VA examinations dated in May 2004 and May 2006 how his lumbar spine disability affects his daily life. He also cited the regulation governing functional impairment, 38 C.F.R. § 4.10, in February 2005. These actions by the veteran indicate actual knowledge of the right to submit additional evidence and of the availability of additional process regarding the effect of the lumbar spine disability on the veteran's daily life. He also has shown he has at least general understanding of the diagnostic criteria for a lumbar spine disability. Additionally, he is represented by a service organization representative who is presumed to have knowledge of VA law and to have shared this knowledge with the veteran. See Overton v. Nicholson, 20 Vet. App. 427 (2006). As both actual knowledge of the veteran's procedural rights and the evidence necessary to substantiate the claim have been demonstrated, and he has had a meaningful opportunity to participate in the development of his claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the severity of the lumbar spine disability. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file. The veteran indicated that he was receiving Social Security Administration (SSA) benefits for his lumbar spine disability; however, the SSA responded in December 2005 that they had no disability entitlement folder for the veteran. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO originally granted service connection for degenerative joint disease of the lumbar spine in July 2003, assigning a 20 percent evaluation effective July 31, 2002. The veteran filed an increased rating claim in January 2004, asserting that his lumbar spine disability affects his ability to work and also causes radiating pain down into his legs. He mentioned that he is not comfortable in any situation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4 will be considered, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The veteran's lumbar spine degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DC's) 5010- 5243. Intervertebral disc syndrome is rated under 38 C.F.R. § 4.71a, DC 5243 and is to be rated (preoperatively or postoperatively) based either on the total duration of incapacitating episodes over the past 12 months or by combining under Section 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. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, DC 5243. A May 2004 VA examination report shows the veteran's complaints of constant daily pain in the low back, worse in the morning. He stated that once a month or so he was bedridden for two to three days because of low back pain. The examiner found, however, that there had been no episodes of prescribed bed rest and no emergency management of acute low back syndrome. A May 2006 VA examination report further noted that the extent of subjective symptomatology for the lumbar spine disability was out of proportion to the objective findings. These findings show that the next higher 40 percent rating is not warranted for the veteran's lumbar spine disability under DC 5243, as there is no evidence of incapacitating episodes. Traumatic arthritis established by x-ray findings is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis established by x-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 warrants a 20 percent disability rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 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 flexion of the thoracolumbar is zero to 90 degrees, extension is 0 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. A May 2004 VA examination report shows forward flexion of the thoracolumbar spine to 90 degrees. The examiner noted that the veteran surprisingly attained 90 degrees, but with grimacing and groaning all the way. Extension was to 10 degrees with coaxing. Left lateral flexion was painfully to 10 degrees; right and left lateral flexion was to 20 degrees with pain; right lateral rotation was to 25 degrees. All motion was described as painful, even ambulating and arising from chair. Repeated and resisted motion further limited range of motion or function in that he was unable/unwilling to do repeated testing complaining of pain. There was no ankylosis shown in the thoracolumbar spine. A May 2006 VA examination report shows forward flexion in the lumbar spine to 45 degrees limited by body habitus (morbid obesity); extension was to 15 degrees; left and right lateral flexion were to 20 degrees; left lateral rotation was to 25 degrees; and right lateral rotation was to 20 degrees. The veteran noted pain at the end of range of motion on all parts of the examination but no pain from 0 to end range of motion. There was no change in motion upon repeated and resisted testing of the spine on multiple flexions from 0 to 45 degrees. These findings do not support the criteria for the next higher 40 percent evaluation for limitation of motion of the lumbar spine under the general rating formula, as the most severe finding was forward flexion limited to 45 degrees. As noted, the spine diagnostic criteria allow for a separate neurological rating. A May 2004 VA examination report shows complaints of pain and numbness radiating into the left lateral leg for two to three minutes per week. The veteran complained of longstanding vague bilateral leg pain and numbness and showed the examiner statis ulceration at the right medial malleolus along with diffuse, circumferential brawny edema almost to the knees bilaterally. On objective evaluation, however, there were no associated features or symptoms including weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints, or erectile dysfunction. The examiner also found no neurologic symptoms due to nerve root involvement. Sensory examination was normal to pin prick and touch in the sacral and distal lower extremities. Deep tendon, cutaneous, and pathologic reflexes were not elicitable due to obesity. Magnetic resonance imaging (MRI) findings showed a broad based central disk protrusion at L4-5 indenting the thecal sac and minimally narrowing the right intervertebral foramina. An April 2004 VA medical record notes the previous MRI findings; the examiner noted that the bulging disc appeared to explain the pain in both legs but that it would be best to see a neurologist. A May 2006 VA examination report notes complaints of low back pain with numbness and tingling down both legs and feet. The examiner noted the veteran had an abnormal, dramatic, slow, shuffling gait, and used a cane, hand rails in the hallway, and desk, chair, and examination table in the examination room. On objective evaluation, however, there were no neurologic symptoms due to nerve root involvement. A reliable sensory examination was not possible due to severe thickened leather-like skin condition of the lower limbs. Minimal strength testing was exhibited on formal testing due to lack of effort; there was no atrophy or loss of muscle tone noted. Reflexes were 2+ out of 4 in the bilateral knees; there was no Achilles reflex noted due to skin condition. While the veteran has significant neurological complaints and one examiner found that the bulging disc appeared to be the cause of lower leg pain, the majority of the objective evidence shows no nerve root involvement in the lumbar spine or other neurological findings to explain the veteran's complaints. The veteran's strength testing was found to be minimal due to lack of effort rather than atrophy or loss of muscle tone. For this reason, a separate neurological evaluation is not warranted for the lumbar spine disability. In evaluating the veteran's claim, the application of a higher disability evaluation based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 has been considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran has significant complaints of pain, weakness, and numbness in the lower back and throughout the lower extremities, affecting his ability to do physical activities. Any functional impairment in the low back, however, already has been considered by the 20 percent rating assigned for under DC's 5010-5243. Additionally, the examiner noted in May 2006 that the veteran's subjective complaints were out of proportion to the objective findings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. An extraschedular rating under 38 C.F.R. § 3.321(b)(1) also is not appropriate in this case. Referral under 38 C.F.R. § 3.321(b)(1) is warranted where circumstances are presented that are unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Any functional impairment in the lumbar spine could affect the veteran's employability; and the May 2004 VA examination report notes that he was not employed. However, there is no evidence of marked interference with employment solely due to the lumbar spine disability. The evidence also does not show any frequent periods of hospitalization due to the lumbar spine disability. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The veteran's disability picture is not so unusual or exceptional in nature so as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. The level of impairment in the lumbar spine has been relatively stable throughout the appeals period, and has never been worse than what is warranted for a 20 percent rating. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs