Citation Nr: 1014100 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 06-31 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative arthritis and disc disease of the lumbar spine, L4-5 and L5-S1, and entitlement to a disability rating in excess of 40 percent, from December 22, 2008. 2. Entitlement to a disability rating in excess of 30 percent for service-connected residuals of pilonidal cystectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from January 1947 to December 1949 and from October 1950 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued in July 2005 and February 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) above. In May 2006 and December 2008, the Veteran testified before a Decision Review Officer (DRO) at hearings held at the local RO. Transcripts from both hearings are associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent and probative evidence of record demonstrates that the Veteran's service-connected degenerative arthritis and disc disease of the lumbar spine, L4-5 and L5-S1 is characterized by forward flexion to no more than 30 degrees, extension to no more than 10 degrees, left lateral flexion to no more than 10 degrees, right lateral flexion to no more than14 degrees, and lateral rotation to no more than 10 degrees in both direction. Range of motion and gait testing reveals pain and muscle spasm. Neurologic examination variously revealed absent ankle reflex, absent patellar, Achilles, or deep tendon reflex, decreased perception to vibrations in the bilateral sacral L1 intervention area, and decreased sensation in the bilateral lower extremities. There is no evidence of ankylosis of the entire spine. 2. The competent and probative evidence of record demonstrates that the Veteran's service-connected residuals of pilonidal cystectomy are characterized by a scar that measures no more than 5 cm by 1 cm, with excoriation and slight hypopigmentation of the skin. The scar is superficial, but the upper portion of the scar is deep as there is some adherence to underlying tissue and old sinus tracts in that area. The scar does not result in any limitation of motion or function. The scar drains a fluid that ranges from clear to bloody and produces an odor, which more nearly approximates extensive leakage. CONCLUSIONS OF LAW 1. Throughout the entire appeal period, the schedular criteria for a 60 percent disability rating, but no higher, for service-connected degenerative arthritis and disc disease of the lumbar spine, L4-5 and L5-S1, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). 2. The schedular criteria for a 50 percent disability rating, but no higher, for service-connected residual of pilonidal cystectomy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 7803-7333 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2009). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be assigned where the symptomatology warrants different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Service connection for degenerative joint disease and degenerative disc disease of the lumbar spine was established in July 2005, and the RO assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5242 (2005), effective November 4, 1997. In making this determination, the RO noted that the Veteran's claim for service connection for a low back disability was initially denied in a rating decision issued in March 1998, and that the Veteran had filed a timely notice of disagreement (NOD) as to that ratings decision. However, the RO noted that the Veteran was never provided a Statement of the Case (SOC) following his NOD and thus, the Veteran's claim had remained open from the date VA received his claim for benefits in November 1997. In this regard, the RO noted that the rating criteria used to evaluate back disabilities had been amended since the Veteran filed his service connection claim and, as such, the RO evaluated the Veteran's lumbar spine disability under the former and current rating criteria. The RO determined that, given the evidence of decreased range of motion in the Veteran's lumbar spine, a 20 percent disability rating was warranted under the historic rating criteria for limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5292 (2002). The RO also determined that a disability rating higher than 20 percent was not warranted under any other diagnostic code. Following the July 2005 rating decision, the Veteran submitted a timely NOD as to the rating assigned to his service-connected lumbar spine disability. See July 2005 NOD. The RO did not, however, provide the Veteran with an SOC following his NOD. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). Instead, the RO issued a February 2006 rating decision continuing the 20 percent rating for the Veteran's service-connected lumbar spine disability, to which the Veteran submitted a timely NOD and substantive appeal. Nevertheless, because the RO did not provide the Veteran with an SOC following his July 2005 NOD, the Board finds the Veteran's claim has been open since the July 2005 rating decision and, thus, the Veteran is seeking an initial disability rating higher than 20 percent. In July 2009, the RO increased the Veteran's disability rating to 40 percent, effective December 2008. The Veteran did not withdraw his appeal as to an increased rating for his service-connected lumbar spine disability and, thus, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that in 2003, during the pendency of the Veteran's claim and appeal, amendments were made to the rating criteria evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2004)). This amendment and subsequent correction were made effective from September 26, 2003. The rating criteria for evaluating intervertebral disc syndrome were also revised previously, effective from September 23, 2002. See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); (codified at 38 C.F.R. § 4.71a, DC 5293 (2003)). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Principi, 1 Vet. App. 308, 312-13 (1991), to the extent it held that where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2005). Accordingly, the Board will review the disability rating under the old and new criteria. As noted above, the RO evaluated the Veteran's claim under the old and new regulations in making its rating decision dated July 2005. As such, the Board finds no prejudice to the Veteran as a review of the record demonstrates that the RO considered the old and new rating criteria, and the Veteran was made aware of the changes. See Bernard v. Brown 4 Vet. App. 384 (1993). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2009). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2009). As noted above, the Veteran's service-connected lumbar spine disability is evaluated under DC 5003-5243. The Veteran's specific disability is not listed on the Rating Schedule, and the RO assigned DC 5003-5243 to represent the degenerative arthritis and limitation of motion affecting his lumbar spine disability. The Board notes that the rating criteria in effect prior to September 2003 did not contain a separate diagnostic code for degenerative arthritis of the lumbar spine. Nevertheless, the Board will evaluate the Veteran's service-connected lumbar spine disability under the rating criteria for degenerative arthritis under DC 5003 and all other potentially applicable diagnostic codes that evaluate disabilities involving the spine. See 38 C.F.R. § 4.71a, DCs 5285-5295 (2002). The Board will also evaluate the Veteran's disability under all potentially applicable diagnostic codes under the current rating criteria. Under the rating criteria in effect prior to September 2003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003 (2002). Prior to September 2003, limitation of motion of the lumbar spine warranted a 10 percent disability rating, if slight; a 20 percent rating, if moderate; and a 40 percent rating, if severe. See 38 C.F.R. § 4.71a, DC 5292 (2002). Under DC 5293 (2002), intervertebral disc syndrome warrants a noncompensable (zero percent) disability rating if postoperative and cured; a 10 percent rating, if mind; a 20 percent rating, if moderate, with recurring attacks; and a 40 percent rating if severe, with recurring attacks and intermittent relief. Important for this case, a 60 percent rating is warranted if intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief. Under the amendment to the Rating Schedule that became effective on September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450 (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5343 (2009). The criteria for the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) are as follows, in part: 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: 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 20% 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. 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 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 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 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, DCs 5235 to 5243 (2009). Review of the pertinent evidence of record reveals that the Veteran's service-connected lumbar spine disability is manifested by subjective complaints of pain, weakness, and muscle spasms, with objective evidence of decreased range of motion and painful motion. See VA examination reports dated April 2004, June 2005, January 2006, and December 2008; see also VA outpatient treatment records and private medical evidence dated from 1995 to 2009. At the April 2004 VA examination, the Veteran demonstrated forward flexion to 80 degrees, extension to 10 degrees, lateral flexion to 25 degrees in both directions, and lateral rotation to 30 degrees in both directions. The Veteran complained of pain while demonstrating range of motion and repetitive movement revealed weakness in the lumbar spine. Objective examination also revealed tenderness in the lumbosacral area. There was no evidence of muscle spasms, ankylosis, or any signs and symptoms of intervertebral disc syndrome. The Veteran denied having any incapacitating episodes in the last 12 months. The Veteran also denied experiencing flare-ups of pain, as he reported that his pain was the same every day. Neurologic examination revealed absent ankle jerk but sensory examination was normal throughout the rest of the body. At the June 2005 VA examination, the Veteran demonstrated forward flexion to 55 degrees, lateral flexion to 20 degrees on the left and 12 degrees on the right, and lateral rotation to 30 degrees on the left and 46 degrees on the right. The Veteran was unable to demonstrate extension beyond zero degrees, and he complained of pain while demonstrating movement in his lumbar spine. Repetitive motion revealed decreased range of motion in forward flexion, lateral flexion, and lateral rotation. There was objective evidence of pain, with increased muscle spasms and tenderness in the lumbar spine while testing range of motion and gait. The examiner stated that the Veteran's posture was with forward flexion, but there was no evidence of ankylosis. The Veteran reported having flare-ups of pain that result in additional limitation of motion and functional impairment and are alleviated by sitting in a reclining chair. The examiner was unable to elicit patellar, Achilles, or deep tendon reflexes on neurologic examination, and there was diminished perception to vibratory stimuli in the bilateral sacral L1 intervention area, while perception was intact to the lower extremities. At the January 2006 VA examination, the Veteran demonstrated forward flexion from 8 degrees to 62 degrees, extension from negative 8 degrees to zero degrees, lateral flexion to 14 degrees on the left and 10 degrees on the right, and lateral rotation to 24 degrees on the left and 26 degrees on the right. The Veteran complained of pain while demonstrating movement in his lumbar spine and repetitive motion revealed a slight decrease in range of motion in forward flexion, lateral flexion, and lateral rotation. The Veteran denied having flare-ups of pain, as he reported that his pain was constant, and he also denied having incapacitating periods related to his spine in the past 12 months. The Veteran was noted to stand in forward flexion but the examiner noted there was no evidence of a fixed posture abnormality or ankylosis. The examiner was unable to elicit patellar, Achilles, or deep tendon reflexes on neurologic examination, but perception to vibratory stimuli was intact in the bilateral sacral areas and lower extremities. The December 2008 VA examination report reflects that the Veteran demonstrated forward flexion to 30 degrees, lateral flexion to 15 degrees in both directions, and lateral rotation to 10 degrees in both directions. The Veteran was unable to extend his back as he demonstrated extension to zero degrees, and he complained of pain while demonstrating flexion and lateral rotation. He reported having flare-ups of pain approximately one to two days out of a week. The Veteran denied having a history of incapacitating episodes during the past year. The examiner was unable to elicit patellar, Achilles, or deep tendon reflexes on neurologic examination, and the examiner also noted there was decreased sensation in the Veteran's bilateral lower extremities. In evaluating the Veteran's service-connected lumbar spine disability under DC 5003/5292 (2002), the Board notes there is evidence of severe limitation of motion in extension as early as April 2004. The evidence shows that the Veteran's ability to extend his back was limited at the April 2004 VA examination, as he was only able to demonstrate extension to 10 degrees. The evidence shows that his range of motion in extension significantly declined thereafter, as the June 2005 and December 2008 VA examination reports show the Veteran was unable to extend his back beyond zero degrees, which is the neutral position, and he was only able to demonstrate extension to 8 degrees at the January 2006 VA examination. The evidence also shows the Veteran complained of pain while demonstrating range of motion at each VA examination. Therefore, the Board finds the preponderance of the evidence shows the Veteran's service-connected lumbar spine disability is manifested by severe limitation of motion and, thus, warrants a 40 percent disability rating under DC 5003/5272 (2002). The Board has considered whether the Veteran's service- connected lumbar spine disability warrants a higher, or separate, disability rating under any of the other rating criteria in effect prior to September 2002. However, the Veteran has never been diagnosed with, or shown to have, fractured vertebra or ankylosis of the lumbar spine. With regard to ankylosis, the Board notes there is evidence that shows the Veteran stands with his back in forward flexion. See VA examination reports dated June 2005 and January 2006. However, the medical professionals who evaluated the Veteran's lumbar spine in April 2004, June 2005, and January 2006 specifically stated there was no evidence of ankylosis or a fixed spine abnormality. Indeed, while the Veteran stands with his back in forward flexion, the evidence does not show that his back is fixed in flexion as he is able to demonstrate movement in his back, although significantly limited. Therefore, the Board finds DCs 5285, 5286, and 5289 (2002) are not for application. The Board also finds that DC 5295 (2002) does not assist the Veteran in obtaining a higher disability rating because the highest disability rating available under that diagnostic code is 40 percent, which contemplates lumbosacral strain, limitation of motion, and narrowing of joint space in the lumbar region. In this regard, the Board notes that these symptoms are contemplated by the 40 percent rating assigned herein under DC 5003/5292. Therefore, DC 5295 (2002) is not for application in this case. In evaluating the Veteran's claim under DC 5293 (2002), the Board notes that the April 2004 VA examiner specifically stated there were no signs or symptoms of intervertebral disc syndrome. Nevertheless, the evidence dated as early as April 2004 shows the Veteran's service-connected lumbar spine disability is manifested by degenerative disc disease and other symptoms consistent with intervertebral disc syndrome. Review of the evidence shows that range of motion and gait testing revealed pain and increased muscle spasms in the lumbosacral area. See VA examination reports dated June 2005 and January 2006. In addition, the Veteran has consistently reported that his low back pain radiates into his buttocks and legs, and his subjective complaints of neurological symptoms associated with his service-connected lumbar spine disability are supported by the medical evidence of record. Indeed, objective evaluation of the Veteran's service- connected lumbar spine disability has variously revealed absent ankle reflex, absent patellar, Achilles, or deep tendon reflex, decreased perception to vibrations in the bilateral sacral L1 intervention area, and decreased sensation in the bilateral lower extremities. See VA examination reports dated April 2004, June 2005, January 2006, and December 2008. Regarding his pain and muscle spasms, the Veteran has reported that his pain is constant and he only feels relief after taking a break from what he is doing, sitting in a reclining chair, and/or taking medication. Despite the evidence showing the Veteran has intermittent relief from his symptoms, the Board finds the preponderance of the evidence supports the grant of a 60 percent disability rating under DC5293 (2002). The Board finds that the evidence of pain and muscle spasms while demonstrating range of motion and walking, and the evidence of neurologic symptoms affecting the Veteran's lumbar spine and lower extremities, more nearly approximates the level of disability contemplated by the 60 percent rating under DC 5293 (2002). While the evidence supports the grant of a 40 percent rating under DC 5292 (2002), for severe limitation of motion, the Board finds a 60 percent rating under DC 5293 (2002) is more appropriate, as it affords the Veteran the highest disability rating possible. Separate disability ratings are not appropriate in this case because the 60 percent rating assigned herein contemplates the pain and muscle spasms the Veteran experiences while demonstrating range of motion, while the 40 percent rating under DC 5292 also contemplates the Veteran's painful and limited motion. See 38 C.F.R. § 4.14 (2009). Therefore, to avoid pyramiding, the Board finds the Veteran's service-connected lumbar spine disability warrants a 60 percent disability rating under DC 5293 (2002), not to be combined with any other potentially applicable disability rating. In evaluating the Veteran's service-connected lumbar spine disability under the rating criteria currently in effect, the Board finds that a disability rating higher than 60 percent is not warranted because there is no evidence of unfavorable ankylosis of the entire spine. As noted above, while there is evidence that the Veteran stands in forward flexion, the medical evidence shows the Veteran does not have ankylosis of the entire spine, as he able to demonstrate movement in forward flexion, lateral flexion, and lateral rotation. Therefore, the Board finds the Veteran does not have ankylosis of the entire spine and thus, the general rating formula, including specifically DC 5242 (2009), does not assist the Veteran in obtaining a higher disability rating. The Board has considered whether a separate disability rating can be assigned for any neurological abnormalities associated with the Veteran's service-connected lumbar spine disability, as directed by the general rating formula. However, the 60 percent rating assigned herein contemplates any and all neurologic symptoms and abnormalities that may be associated with the Veteran's service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, DC 5293 (2002). Therefore, there is no basis to assign a separate disability rating for neurological symptoms or disabilities related to the Veteran's service-connected lumbar spine disability. The Board has also considered whether an increased rating is warranted under the Formula for Rating Intervertebral Disc Syndrome; however, 60 percent is the highest possible disability rating available under the Formula and the preponderance of the evidence shows the Veteran has not had incapacitating episodes related to his lumbar spine disability during the past 12 months. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not assist the Veteran in obtaining a higher disability rating. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. While the Veteran has complained of pain while demonstrating range of motion and reported having flare-ups of pain that result in additional functional limitation, the Board finds that any additional functional limitation is contemplated in the disability rating currently assigned. Indeed, the 60 percent rating currently assigned contemplates the Veteran's painful motion, muscle spasms, and neurologic symptoms, including all functional limitation caused by these symptoms. Therefore, the Board finds that an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether the Veteran is entitled to a "staged" rating. However, because the Veteran's complaints and the medical evidence of record has been consistent regarding the severity of the Veteran's lumbar spine disability throughout the pendency of this claim and appeal, the Board finds that, at no time since the Veteran's claim for an increased rating, in August 2005, has his service- connected residual pilonidal cystectomy scar been more disabling than as currently rated under the present decision. See Fenderson, supra. In view of the foregoing, the Board finds that the disability rating assigned in this decision adequately reflects the clinically established impairment experienced by the Veteran. The preponderance of the evidence supports the grant of a 60 percent disability rating throughout the appeal period, while the preponderance of the evidence is against the grant of a disability rating in excess of 60 percent at any time during the appeal period. All reasonable doubt has been resolved in favor of the Veteran in reaching this decision. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Pilonidal Cyst Service connection for a residual scar of pilonidal cystectomy was established in December 1953, and the RO assigned a noncompensable (zero percent) disability rating pursuant to 4.118, DC 7805, effective October 1953. In February 2006, the RO increased his disability rating to 20 percent under DC 7803, effective August 9, 2005. In July 2007, the RO increased his disability rating to 30 percent, under DC 7803-7333, effective August 2005. The Veteran has asserted that his service-connected residual pilonidal cystectomy scar warrants a disability rating higher than 30 percent. It is not clear why the RO chose to rate the Veteran's service-connected disability under DC 7803-7333; however, in an effort to afford the Veteran the highest possible disability rating, the Board will evaluate his service- connected disability under all potentially applicable diagnostic codes, including DCs 7803 and 7333. The Board notes that, during the pendency of the Veteran's claim and appeal, an amendment was made to the criteria for rating the skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805 (2009). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. However, the amended criteria only apply to claims received by VA on or after October 23, 2008, or in a case where a veteran requests review of his disability under the new rating criteria. The Veteran's increased rating claim was received by VA in August 2005 and the Veteran has not requested that his disability be evaluated under the new rating criteria. Therefore, the Board will proceed to evaluate the Veteran's service-connected skin disability under all potentially applicable diagnostic codes in effect prior to December 2008. In evaluating the Veteran's disability under the rating criteria used to evaluate scars, the Board notes that DCs 7802, 7803, and 7804 do not assist the Veteran in obtaining a higher disability rating as the highest rating available under those codes is 10 percent. The Board also notes that DC 7800 is not for application because the Veteran's service- connected disability does not involve his head, face, or neck. Diagnostic Code 7801 provides that, for scars other than on the head, face, or neck, that are deep or cause limited motion, warrant a 10 percent rating if in an area exceeding 6 square inches; a 20 percent rating if exceeding 12 square inches; a 30 percent rating if exceeding 72 square inches; and a 40 percent rating if exceeding 144 square inches. Note (1) provides that scars in widely separated area, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7805 provides that scars can be rated on limitation of motion of the affected part. Diagnostic Code 7333 provides that stricture of the rectum or anus warrants a 30 percent rating for moderate reduction in lumen, or moderate constant leakage. A 50 percent rating is warranted for great reduction in lumen or extensive leakage. A 100 percent rating is warranted for stricture that requires colostomy. The Veteran has asserted that, on a daily basis, the scar continues to drain clear and/or bloody discharge that has an odor and that he uses gauze pads and tape to prevent seepage onto his underwear and outer garments. The Veteran has asserted that, given the location of his scar, the gauze pads are unsuccessful in preventing leakage. Review of the pertinent evidence reveals the Veteran's service-connected residual pilonidal cystectomy scar is located in the fold between his buttocks. At the January 2006 VA examination, the scar measured 2 cm by .1 cm and was manifested by excoriation of the skin, bloody drainage, and hypopigmentation. The scar was not adhered to the underlying tissue, deep, or unstable. There was no significant elevation or depression on the surface contour of the scar; nor were there any areas of induration. There was no limitation of motion or function caused by the scar. At the December 2008 VA examination, the scar measured 5 cm by 1 cm and there was no drainage seen or pain felt during palpation. There was some adherence or induration to underlying tissue, especially with the granulation tissue found at the upper end of the scar. The scar was slightly hypopigmented but, otherwise, the skin was not irregular, atrophic, or scaly. The examining physician noted that part of the scar is superficial, while the other part is deeper because it is underlying into old sinus tracts. There was no limitation of motion or function caused by the scar. In evaluating the Veteran's service-connected disability under DC 7801, the Board notes that, while the Veteran's scar has been described as deep, there is no indication that his scar measures more than 144 square inches (929 square centimeters). Indeed, the preponderance of the evidence shows the Veteran's scar measures no more than 5 square centimeters. See VA examination reports dated January 2006 and December 2008. Therefore, DC 7801 does not assist the Veteran in obtaining a disability rating higher than 30 percent. The preponderance of the evidence shows the Veteran's service-connected residual pilonidal cystectomy scar does not result in limitation of motion or function. Therefore, DC 7805 is not for application in this case. In evaluating the Veteran's service-connected disability under DC 7333, the Board finds the lay and medical evidence raises a reasonable doubt as to whether the Veteran experiences extensive leakage with his service-connected disability. As noted, the Veteran has asserted that his scar drains fluid that ranges from clear to bloody and produces an odor. He has asserted that the scar drains every day, soils his underwear, and bleeds through to his outer garments. The Veteran has asserted that the scar area is painful and requires that he keep the area clean. He has asserted, however, that, given the location of the scar, it is difficult to use gauze pads and he sometimes uses toilet tissue to prevent leakage onto his outer garments. The Veteran is competent to provide evidence on matters of which he has personal knowledge and, thus, his report of symptoms associated with his service-connected disability is considered competent lay evidence. The Veteran's report of symptoms is also supported by the evidence of record and is, thus, considered credible. In this regard, the Board notes that, while the physician who conducted the December 2008 VA examination did not find any evidence of drainage or pain, there was objective medical evidence of bloody drainage and tenderness at the January 2006 VA examination. Given the competent and credible lay evidence of constant drainage of clear and bloody fluid that soils the Veteran's under and outer wear, the Board finds the evidence raises a reasonable doubt as to whether there is extensive leakage associated with the Veteran's service-connected residual pilonidal cystectomy scar and, as such doubt is resolved in favor of the Veteran, the Board finds a 50 percent rating is warranted under DC 7333. A higher disability rating is not warranted because there is no indication that the Veteran's service-connected residual pilonidal cystectomy scar has required a colostomy. Therefore, a disability rating higher than 50 percent is not warranted under DC 7333. The Board has considered the Veteran's service-connected residual pilonidal cystectomy scar under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the 50 percent rating assigned herein. Finally, the Board has considered whether the Veteran is entitled to a "staged" rating, as the Court indicated can be done in this type of case. See Hart, supra. However, upon reviewing the longitudinal record in this case, the Board finds that, at no time since the filing of the Veteran's claim for an increased rating, in August 2005, has his service-connected residual pilonidal cystectomy scar been more disabling than as currently rated under the present decision. The Veteran's complaints and the medical evidence of record have been relatively consistent throughout the pendency of this claim and appeal. Therefore, based on the foregoing, the Board finds the Veteran's service-connected residual pilonidal cystectomy scar warrants a 50 percent rating, but no higher, under DC 7333. All reasonable doubt has been resolved in favor of the Veteran. See Gilbert, supra. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). For an increased-compensation claim, the VCAA requirement is generic notice, that is, notice that informs the claimant of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 U.S. 1696 (2009). With respect to the residual scar disability, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2005 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. With respect to the lumbar spine disability, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the Veteran in July 2008. The July 2008 letter informed the Veteran of what evidence was required to substantiate his claim and of how disability ratings and effective dates are assigned. While the Veteran was not advised of his and VA's respective duties for obtaining evidence, the Board finds no prejudice to the Veteran because, as discussed below, VA has satisfied its duty to assist the Veteran in obtaining the information and evidence needed to substantiate his claim. Indeed, the Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained VA outpatient treatment records dated from 1995 to 2007, as well as private medical records dated from 2004 to 2009. Significantly, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In addition, the Veteran was afforded VA examinations in conjunction with his claims in April 2004, June 2005, January 2006, and December 2008. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. ORDER Throughout the entire appeal period, entitlement to a 60 percent disability rating for service-connected degenerative arthritis and disc disease of the lumbar spine, L4-5 and L5- S1, is granted. Entitlement to a 50 percent disability rating for service- connected residuals of pilonidal cystectomy is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs