Citation Nr: 1134818 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-07 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a disability rating higher than 40 percent for service-connected degenerative disc disease of the lumbar spine (back disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and J. T.-P. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to June 1967 and from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. In October 2009, the Veteran and his spouse, J. T.-P., testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. This claim was remanded by the Board in January 2010 in order for additional evidence to be obtained and associated with the claims file. All requested development has been completed and the claim has been returned to the Board for adjudication. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's service-connected degenerative disc disease of the lumbar spine is characterized by subjective complaints of constant low back pain, which radiates into the left lower extremity. The Veteran is able to demonstrate flexion to no less than 50 degrees, extension to no more than 10 degrees, and lateral flexion and rotation to no more 10 degrees. The medical evidence of record reflects that, due to gait instability, weakness, decreased range of motion, incoordination, lack of endurance, and pain after repetitive use, the Veteran's range of motion may decrease to 40 percent in flexion, five degrees in extension, and 15 degrees in lateral flexion and rotation. The medical evidence of record also shows that the Veteran suffers from neurological problems, including left foot drop and peripheral neuropathy; however, the medical evidence reflects that these neurological problems are related to the Veteran's diabetes, not his service-connected lumbar spine disability. 2. Any additional functional impairment due to pain, incoordination, fatigability or weakness is contemplated in the disability rating currently assigned. 38 C.F.R. §§ 4.40, 4.45 (2010) DeLuca v. Brown, 8 Vet. App. 202 (1995). CONCLUSION OF LAW The schedular criteria for a disability rating higher than 40 percent for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (2010). 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. 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. Although rating personnel are directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Service connection for osteoarthritic changes associated with chronic back strain was established in May 1995, and the RO assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, effective October 14, 1994. In September 2000, the RO increased the Veteran's disability rating to 20 percent, effective October 10, 1997. Likewise, in April 2004, the RO increased the Veteran's disability rating to 40 percent pursuant to DC 5010-5237, effective from September 26, 2003. At that time, the RO considered a January 2004 VA examination that showed that the Veteran did not have any flexion in his lumbar spine. The January 2004 VA examiner noted that, while the Veteran was able to bend over until his fingertips reached the level of his ankles, his motion came from the hips, not his lumbar spine. Accordingly, the RO granted a 40 percent disability rating based upon the evidence showing forward flexion to 40 degrees or less. In March 2005, the Veteran filed a claim seeking an increased disability rating for his service-connected lumbar spine disability; however, in a September 2005 rating decision, the RO continued the 40 percent disability rating assigned to his lumbar spine disability, while re-characterizing his disability as degenerative disc disease of the lumbar spine. The Veteran appealed the RO's determination as to the disability rating assigned to his lumbar spine disability, which is the basis of the current appeal. As noted, the Veteran's service-connected lumbar spine disability is currently rated 40 percent disabling under DC 5010-5237. The Veteran's specific disability is not listed in the Rating Schedule, and the RO applied DC 5010-5237 pursuant to 38 C.F.R. § 4.20 (2010), which provides that it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. Id. The RO determined that the most closely analogous diagnostic code is DC 5237, which is assigned for lumbosacral or cervical strain and is rated under a general rating formula for evaluating diseases and injuries of the spine. See 38 C.F.R. § 4.71a, DCs 5235 to 5343 (2010). 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 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 (2010). Review of the record reveals that the Veteran's service-connected lumbar spine disability is manifested by subjective complaints of constant low back pain, which radiates into the left lower extremity. The evidence shows that the Veteran receives medication treatment and injections to control his symptoms. At the April 2005 VA examination, the Veteran was able to demonstrate flexion to 50 degrees, extension to 10 degrees, and lateral flexion and rotation to 10 degrees. The examiner stated that the Veteran's pain from repeated use could significantly limit functional ability of the affected areas of his low back. The examiner also stated that the Veteran's weakened movement, excess fatigability, and incoordination would result from pain that equals 25 percent diminishment of excursion, strength, speech, coordination, and endurance. In an addendum dated August 2005, VA examiner stated that, after repetitive use, the Veteran's range of motion may decrease to 40 percent in flexion, five degrees in extension, and 15 degrees in lateral flexion and rotation, providing evidence against this claim. At the December 2006 VA examination, the Veteran demonstrated flexion to 60 degrees; however, the examiner noted that the Veteran had severe pain while demonstrating such flexion. The Veteran was able to demonstrate extension to five degrees, with pain, and lateral flexion and rotation to 10 degrees. The examiner stated that the Veteran's DeLuca factor is 50 degrees based on gait instability, weakness, decreased range of motion, incoordination, lack of endurance, and pain after repetitive use. Otherwise, the objective evidence reflects that the Veteran is able to demonstrate flexion to 50 degrees, extension to 10 degrees, and lateral flexion and rotation to 20 degrees. See April 2005 VA outpatient treatment record. Based on the foregoing, the Board finds that the preponderance of the evidence does not support the grant of a disability rating higher than 40 percent for the Veteran's service-connected lumbar spine disability. In making this determination, the Board notes, at the outset, that the current evidence shows the Veteran is able to demonstrate forward flexion and movement in all other planes of excursion. In this regard, there is no medical explanation as to why the Veteran was previously noted to have no flexion in his lumbar spine and, yet, is currently able to demonstrate flexion in his lumbar spine; however, the Board is bound to evaluate the Veteran's claim based upon the current evidence of record. In this context, the preponderance of the evidence does not show symptoms of unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine, which is needed to warrant a higher schedular rating. Indeed, the evidence shows that, while the Veteran's range of motion is limited (providing the basis for the current 40 percent evaluation), he is able to demonstrate movement in all planes of excursion and, thus, his spine is not fixed in flexion or extension. The Board has considered whether the Veteran's symptoms are the functional equivalent of unfavorable ankylosis, particularly given the evidence showing that he experiences additional functional loss due to pain and after repetitive use, including decreased range of motion, weakness, incoordination, and lack of endurance. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the evidence shows that, even with his additional functional loss due to pain and after repetitive motion, the Veteran is likely able to demonstrate flexion to no less than 40 out of 90 degrees, which warrants no higher than a 40 percent rating under the schedular criteria. See VA examination reports dated April and August 2005 and December 2006. In this regard, the Board finds probative that the Veteran's additional functional loss due to pain allows him to demonstrate a significant amount of movement in his spine and that he has not demonstrated the other symptoms associated with ankylosis, such as difficulty walking due to limited line of vision, restricted opening of mouth and chewing, breathing limited to diaphramic respiration, gastrointestinal symptoms due to pressure of the coastal margin of the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. The evidence shows that the Veteran has gait instability; however, there is no indication or assertion that his gait instability is due to a limited line of vision. In this context, the Board has also considered whether a separate rating may be assigned based upon neurological abnormalities associated with the Veteran's lumbar spine disability, as the evidence shows that he suffers from partial left foot drop and peripheral neuropathy. However, the evidence of record reflects that these neurological symptoms are attributable to the Veteran's diabetes, not his lumbar spine disability. See January 2004 VA examination report. Therefore, the Board finds that the evidence of record does not support the grant of a separate disability rating for neurological abnormalities associated with the Veteran's service-connected lumbar spine disability. In summary, and based on the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of a disability rating higher than 40 percent for the Veteran's service-connected lumbar spine disability. In evaluating this claim, the Board has considered the objective evidence of record, as well as the credible testimony provided at the December 2009 video conference hearing regarding the severity of the Veteran's lumbar spine disability. Unfortunately, however, the lay and medical evidence of record does not support the grant of an increased disability rating for the Veteran's service-connected lumbar spine disability under the schedular rating criteria or the application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra. Therefore, the Veteran's claim is denied and the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. 2010); 38 C.F.R. § 3.159, 3.326(a) (2010). 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, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 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 increased rating claim and of the Veteran's and VA's respective duties for obtaining evidence. In August 2008, the RO also sent the Veteran a letter that advised him of the rating criteria used to evaluate his service-connected lumbar spine disability, as well as how disability ratings and effective dates are assigned. Thus, the Board concludes that all proper notice has been given the Veteran in this claim. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all pertinent VA and private treatment records identified by the Veteran the record. The Veteran was also afforded VA examinations in April 2005 and December 2006. 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. 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 him in the development of the claim on appeal. 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). ORDER Entitlement to a disability rating higher than 40 percent for service-connected degenerative disc disease of the lumbar spine is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs