Citation Nr: 1039618 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 08-00 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to June 1973 and from May 1974 to January 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Veteran's claim was remanded by the Board in October 2009. FINDING OF FACT From July 11, 2007, the Veteran has had more than 6 weeks per year of incapacitating episodes of intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a 60 percent rating for degenerative disc disease of the lumbar spine have been met since July 11, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5243 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Notification obligation in this case was met by way of a January 2007 pre-adjudication letter from the RO to the Veteran. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records, Social Security Administration (SSA) records, private medical records and VA medical records. The Veteran has been provided VA medical examinations. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. Therefore, the Board finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to the merits of the Veteran's appeal. An August 2005 rating decision granted the Veteran service connection for degenerative disc disease of the of the lumbar spine and awarded the Veteran a 40 percent rating for this disability. In January 2007 the Veteran submitted a claim for a higher rating. At a June 2008 RO hearing the Veteran testified that his back disability had gotten worse since a March 2007 VA examination and that he had spent almost the whole month of March 2008 confined to his bed due to his back disability. The Veteran testified in August 2009 that he has constant low back pain, that he cannot walk more than 25 feet, and that he needs to use a scooter to get around. He reported that his chiropractor prescribes bedrest to him varying from five days to three weeks a month. The Veteran's service-connected back disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 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. 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5243. The general rating formula provides for a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating for unfavorable ankylosis of the entire spine. In this case the medical records do not indicate that the Veteran has unfavorable ankylosis of the lumbar spine. Consequently, the Veteran does not meet the criteria for a rating in excess of 40 percent under the general rating formula for disabilities of the spine. As shown below, the Board does find that the Veteran is entitled to a 60 percent rating for his lumbar spine disability based on incapacitating episodes of intervertebral disc syndrome from July 11, 2007. The formula for rating intervertebral disc syndrome based on incapacitating episodes provides for a 40 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In October 2008 the Veteran submitted a list he had produced of the dates that he had been "laid up" due to his back disability since June 2006. The Veteran apparently asserts that this shows that he is entitled to a 60 percent rating because has required more than 6 weeks of bed rest a year due to his back disability since June 2006. The Board does not find this to be the case prior to July 11, 2007. Prior to that date there are no medical records showing that bed rest had been prescribed by a physician due to the Veteran's lumbar spine disability. In particular a March 2007 VA examination report notes that the Veteran had mild degenerative changes of the lumbar spine and does not indicate that the Veteran had had incapacitating episodes of intervertebral disc syndrome. Accordingly, the criteria for a rating in excess of 40 percent for the Veteran's lumbar spine disability were not met prior to July 11, 2007, based on incapacitating episodes. In a July 11, 2007, letter the Veteran's chiropractor stated that the Veteran's lower back pain had increased and was 9 out of a scale of 10. Palpable muscular spasms were noted through the cervical, thoracic and lumbar spine. The chiropractor stated that the Veteran's overall prognosis was poor. He noted that the Veteran had been under his care for some time and he felt that the Veteran's condition had regressed and worsened. He opined that the Veteran was totally disabled, would need ongoing treatment indefinitely, along with possible help for activities of daily living. Based on the July 11, 2007, letter showing increased severity of the lumbar spine disability, based on the Veteran's October 2008 list showing that he was "laid up" more than 6 weeks a year, based on chiropractor prescription notes dating from August 2008 showing prescribed bedrest of more than 6 weeks a year, and based on a March 2010 VA examination report indicating that the Veteran had had more than 6 weeks of incapacitating episodes of spine disease during the last 12 months, the Board finds that the criteria for a 60 percent rating have been met since July 11, 2007. As noted above, a 60 percent rating is the maximum rating available for intervertebral disc syndrome based on incapacitating episodes. The Board has also considered whether this case should be forwarded to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2009). The Board recognizes that the Veteran's chiropractor stated in July 2007, and again in October 2008, that the Veteran was unemployable due to his back conditions. The Board notes that the chiropractor stated this based on all of the Veteran's spinal conditions, including cervical spine problems. The Board notes that only the symptoms due to the Veteran's lumbar spine disability may be considered in rating the lumbar spine disability. Furthermore, VA examiners opined in October and December 2008 that the Veteran's lumbar spine disability did not prevent the Veteran from engaging in sedentary employment. The Board finds that the Veteran's industrial impairment from his service-connected lumbar spine disability is not in excess of that contemplated by the assigned evaluations. Additionally, the record reflects that the Veteran has not required any hospitalization for this disability since submitting his claim and that the manifestations of low back disability are those contemplated by the schedular criteria. Therefore, the Board has determined that referral of this issue for extra-schedular consideration is not in order. Accordingly the Board finds that the medical evidence reveals that the Veteran is not entitled to a rating in excess of 40 percent for his lumbar spine disability prior to July 11, 2007, and that he is entitled to a 60 percent rating, but no higher, from July 11, 2007. See Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A 60 percent rating is granted for degenerative disc disease of the lumbar spine effective from July 11, 2007, subject to the law and regulations regarding the award of monetary benefits. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs