Citation Nr: 1137232 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 06-25 738 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating greater than 20 percent for residuals of a fracture of the transverse process at L1. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from December 2003 to February 2004 and additional U.S. Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A Travel Board hearing was held at the Philadelphia RO in December 2007 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In July 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent evidence shows that the Veteran's service-connected residuals of a fracture of the transverse process at L1 is manifested by forward flexion of the thoracolumbar spine limited to 40 degrees and chronic back pain. CONCLUSION OF LAW The criteria for an initial rating greater than 20 percent for residuals of a fracture of the transverse process at L1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5235 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's higher initial rating claim for residuals of a fracture of the transverse process at L1 is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In April 2004, VA notified the Veteran of the information and evidence needed to substantiate and complete this claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the April 2004 VCAA notice letter was issued to the Veteran and her service representative prior to the currently appealed rating decision issued in August 2004; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the notice provided to the Veteran and her service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issue of service connection for residuals of a fracture of the transverse process at L1, and because the Veteran was fully informed of the evidence needed to substantiate her claim, the Board finds no prejudice to the Veteran in proceeding with the present decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording her the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran also does not contend, and the evidence does not show, that she is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain her SSA records is required. The Veteran was provided with a VA examination in June 2006 which addressed the nature and severity of her service-connected residuals of a fracture of the transverse process at L1. Given that the pertinent medical history was noted by the examiner, this examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination of record is adequate for rating purposes at the time although the Veteran asserted that her disability had worsened, thus necessitating a remand for a new examination. Pursuant to the Board's July 2010 remand, the Veteran was scheduled for updated VA examinations in August and in October 2010. She did not report for either of these VA examinations and has not shown good cause for her failure to report for either of them. Letters from the RO dated in August 2010, as well as the May 2011 Supplemental Statement of the Case (SSOC), all informed her that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of her claim. The August 2010 letter from the RO also afforded the Veteran the opportunity to reschedule a VA examination but she failed to respond. The Veteran's service representative stated in a September 2011 Informal Hearing Presentation submitted directly to the Board that it had attempted to contact the Veteran for her to provide good cause why she had failed to report for these VA examinations but the representative's efforts at contacting her had been "futile." The Court has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim (as in this case), the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2011). The Veteran also has an obligation to assist in the adjudication of her claim. The Veteran must be prepared to meet her obligations by cooperating with VA efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting her claim. Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for same. 38 C.F.R. § 3.326 (2011). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or medical opinion. And, as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran contends that her service-connected residuals of a fracture of the transverse process at L1 are more disabling than currently evaluated. She specifically contends that the range of motion in her low back is very limited and she is unable to bend forward or turn from side to side. She also contends that her service-connected residuals of a fracture of the transverse process at L1 require her to use a cane for ambulation and she experiences muscle spasms. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in this case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected residuals of a fracture of the transverse process at L1 currently are evaluated as 20 percent disabling effective February 4, 2004, under 38 C.F.R. § 4.71a, DC 5235 (vertebral fracture or dislocation). See 38 C.F.R. § 4.71a, DC 5235 (2011). The General Rating Formula provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is assigned under the General Rating Formula for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned under the General Rating Formula for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC's 5235-5243. Note (1) to the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) states that 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 (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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) directs to 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. Id. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2011). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2011). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, the lumbar vertebrae are considered a group of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45 (2011). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2011). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating greater than 20 percent for a service-connected fracture of the transverse process at L1. As noted above, the Veteran failed to report for VA examinations scheduled for August and October 2010 and has not shown good cause for her failure to report for either of these examinations. When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim (including a higher initial rating claim), the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2011). Thus, the Veteran's higher initial rating claim for her service-connected fracture of the transverse process at L1 will be rated on the evidence of record. Id. The competent evidence of record shows that the Veteran was hospitalized at a private facility in December 2003 just prior to her entrance on to active service. At that time, the Veteran was admitted to the emergency room (ER) following a motor vehicle accident (MVA). X-rays of the lumbosacral spine showed no acute fracture or dislocation. The radiologist's impression was essentially normal lumbosacral spine with a question of mild scoliosis. The ER physician's impression was multiple blunt trauma. A review of an "Entrance Physical Standards Board (EPSBD) Proceedings," DA Form 4707, dated in January 2004 and included in the Veteran's available service treatment records, shows that the Veteran was involved in an MVA in December 2003 "just prior to coming on active duty." When seen by the EPSBD, the Veteran complained of continuing low back pain. Objective examination showed the Veteran's active range of motion was limited on flexion and extension secondary to pain, palpable pain to the upper lumbar paraspinal regions, right greater than left, and negative straight leg raising. X-rays of the lumbosacral spine showed L1 right transverse process fracture. The diagnosis was L1 transverse process fracture. The EPSBD recommended that the Veteran be separated from active service for failure to meet medical procurement standards. It also was noted that the Veteran's L1 transverse process fracture existed prior to service. It was noted further that the Veteran did not meet the medical retention standards. The Veteran's remaining service treatment records show physical therapy treatment related to her L1 transverse process fracture. The Veteran's post-service VA treatment records show that she established care with VA in December 2004. At that time, she reported a history of a lumbosacral spine injury in January 2004. The assessment included a fracture of L1 transverse process. In April 2005, the Veteran complained of right thoracolumbar paraspinal pain and latissimus dorsi pain. Physical examination showed myofascial pain and tenderness and limited spinal mobility. It was noted that a computerized tomography (CT) scan showed deformity of the right L1 transverse process. The diagnoses included chronic persistent myofascial pain of the right latissimus dorsi and erector spine. On VA examination in June 2006, the Veteran's complaints included back achiness, stiffness, and intermittent shooting pain that did not go down her legs. A history of a fracture of L1 was noted. The Veteran did not wear a back brace and did not use a cane. She ambulated without restrictions. She reported difficulty with bending, pushing, turning, and reaching overhead. Her pain was more prominent on her right side. She also reported experiencing intermittent spasms. She denied being bedridden in the previous 12 months. Although she was not employed, this was "not because of her back condition. She just recently had a baby and hence has taken maternity leave." Physical examination showed some tenderness on the L1 process on the right side with mild spasms. Range of motion testing showed forward flexion to 40 degrees, extension to 10 degrees, lateral rotation to 20 degrees, and lateral flexion to 20 degrees bilaterally. There was no additional limitation of motion on repetitive use due to pain, fatigue, weakness, or incoordination. Deep tendon reflexes were symmetrical. Sensory examination was unremarkable. Gait was stable. The impressions included a fracture of transverse proximal L1 with no significant history of flares, no history of bladder or bowel dysfunction, and range of motion limited by pain. On VA outpatient treatment in January 2008, the Veteran complained of increasing back pain in the past year. A history of a fracture to L1 in 2004 was noted. She reported being told that her fracture had not healed correctly and had caused a deformity. She also reported that her back pain was over the right paralumbar region and accompanied by point tenderness. Her pain was exacerbated with movement and had some relief with rest. She reported further that her pain occasionally radiated to the right buttock and thigh but was not radiating at present. She denied any change in bowel or bladder habits, radiculopathy, and numbness or tingling of extremities. Physical examination showed the Veteran ambulated with a stiff gait, no spinal deformity, no bony tenderness, point tenderness over the right paralumbar region, discomfort reported with any movement, an inability to bend, and difficulty going from a sitting to a standing position. The assessment included back pain. In February 2008, the Veteran complained of relentless back pain. She described her initial injury as occurring "when pushed over on a hard floor in [a] tackle" and she could not get up and walk. She was helped and carried to a military ER where the initial x-rays were negative "but she continued to have persistent pain." A repeat set of x-rays had shown a fracture of the transverse process at L1. She reported that she could not walk for 6 months. She currently experienced constant pressure, pain, and ache around the L1 area with severe muscle spasm and stiffness around L1. Her pain and spasms extended down to the right buttock and hip but not in to the lower extremities. She also reported some numbness of the lower extremities on prolonged sitting although this went away after shifting positions. Her pain varied "with good days and bad days." Her constant pain was never less than 4/10 on a pain scale (with 10/10 being the worst pain). Her pain flared up to 7-9/10 with any activity. She could not walk fast or too far. She also could not do too much physically including lifting, bending, and carrying. Her pain worsened on prolonged sitting, standing, and lying positions. A recent lumbosacral spine x-ray had showed only mild kyphosis at the site of her historically described L1 fracture and no spondylolisthesis. A recent magnetic resonance imaging (MRI) scan of the lumbosacral spine showed only minimal lumbar spondylosis with disc desiccation at L5-S1 and otherwise normal vertebral bodies. The Veteran stated that she was a full-time student in a medical assistant program and worked 1 day a month at Kohl's. Physical examination showed intact sensation, negative straight leg raising, and normal station and gait. The impressions included a reported old L1 transverse process fracture with residual chronic back pain, questionable mechanical strain, no definite radicular signs or symptoms, and a questionable slight increase in kyphosis at L1 level but no report of a definite fracture. The Board acknowledges the Veteran's assertions that her service-connected residuals of a fracture of the transverse process at L1 are more disabling than currently evaluated. The competent evidence of record does not support these assertions, however, and shows instead that the Veteran's service-connected residuals of a fracture of the transverse process at L1 are manifested by forward flexion of the thoracolumbar spine limited to 40 degrees (as seen on VA examination in June 2006). See 38 C.F.R. § 4.71a, DC 5235 (2011). Although the range of motion in the Veteran's lumbosacral spine was limited by pain at her June 2006 VA examination, this was accounted for in the 40 degree finding and there was no additional limitation of motion due to any of the DeLuca factors. Despite the Veteran's assertions to the contrary, she specifically denied using a cane at her June 2006 VA examination. No neurological abnormalities, to include bowel or bladder impairment, have been associated with the Veteran's service-connected residuals of a fracture of the transverse process at L1 such that a separate rating for such impairment is warranted under the General Rating Formula. The Veteran herself specifically denied any bowel or bladder impairment in January 2008. There also is no competent evidence demonstrating any spinal ankylosis (whether favorable or unfavorable) or that the Veteran's forward flexion in her lumbosacral spine is limited to 30 degrees or less (i.e., a 40, 50, or 100 percent rating under DC 5235) such that a disability rating greater than 20 percent for her service-connected residuals of a fracture of the transverse process at L1 is warranted. Id. The Veteran further has not identified or submitted any competent evidence, to include a medical nexus, demonstrating her entitlement to an initial rating greater than 20 percent for her service-connected residuals of a fracture of the transverse process at L1. Accordingly, the Board finds that the criteria for an initial rating greater than 20 percent for the Veteran's service-connected residuals of a fracture of the transverse process at L1 have not been met. Id. The Board finally finds that, because the competent evidence indicates that the Veteran's service-connected residuals of a fracture of the transverse process at L1 have not changed during the pendency of this appeal, consideration of staged ratings is not warranted. See Fenderson, 12 Vet. App. at 119. The Board again notes that, although evidence might have been obtained on VA examinations scheduled for August and October 2010 which showed changes in the Veteran's service-connected residuals of a fracture of the transverse process at L1, she failed to report for these examinations. See 38 C.F.R. § 3.655. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for her service-connected residuals of a fracture of the transverse process at L1. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluation assigned for the Veteran's service-connected residuals of a fracture of the transverse process at L1 is not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected residuals of a fracture of the transverse process at L1. This is especially true because the 20 percent rating currently assigned for the Veteran's residuals of a fracture of the transverse process at L1 effective February 4, 2004, contemplates moderate disability. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. The Veteran reported at her June 2006 VA examination that, although she was not working at that time, she had taken maternity leave and her current unemployment was not due to her service-connected residuals of a fracture of the transverse process at L1. The Veteran subsequently reported in February 2008 that she was a full-time student and worked 1 day a month at Kohl's. She did not indicate, and the competent evidence does not show, that she has been hospitalized frequently for her service-connected residuals of a fracture of the transverse process at L1. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating greater than 20 percent for residuals of a fracture of the transverse process at L1 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs