Citation Nr: 1300731 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-08 829 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for the service-connected degenerative disc disease (DDD) of the lumbar spine, status post laminectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1942 to December 1945. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision issued by the RO in which the RO, in pertinent part, denied the Veteran's request to reopen a claim for service connection for the lumbar spine disability. The Veteran appealed this decision to the Board. In a May 2007 decision, the Board reopened the Veteran's claim and remanded the matter of service connection for the lumbar spine disability to the RO further development of the record. In the April 2008 rating decision, the RO granted service connection for the lumbar spine disability and assigned a 20 percent rating for the disability effective on January 2, 2003. The Veteran appealed the rating assigned for the lumbar spine disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In February 2012, the Board remanded this matter for additional development. The matter has been returned to the Board for additional appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT For the period of the appeal, the service-connected DDD of the lumbar spine, status post laminectomy is shown to have been productive of a disability picture manifested by a functional loss due to pain that more nearly approximated that of severe limitation of motion or forward flexion of the thoracolumbar spine restricted to 30 degrees or less; unfavorable ankylosis of the entire thoracolumbar spine is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation of 40 percent, but not higher for service-connected DDD of the lumbar spine, status post laminectomy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a including Diagnostic Code (DC) 5242 (2011), DC 5292, 5295 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an May 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grants of service connection, the notice letter did not contain an explanation of the general rating criteria relevant to his lumbar spine disability. A June 2008 letter and December 2010 Supplemental Statement of the Case (SSOC) set forth applicable criteria for higher ratings for the lumbar spine disability. After issuance of the December 2010 SSOC, and opportunity for the Veteran to respond, the November SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file (including the Virtual VA electronic claims) include the service treatment records, private treatment records, VA treatment records and examination report. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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, where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 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. See 38 C.F.R. § 4.7. The criteria for evaluating spine disorders were revised during the pendency of this appeal. Prior to September 2003, under DC 5292 (limitation of motion of the lumbar spine), a 20 percent evaluation was assigned for moderate limitation of motion and a 40 percent evaluation was warranted for severe limitation of motion. Under DC 5295 (lumbosacral strain), a 20 percent rating was assigned for lumbosacral strain manifested by muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position. A 40 percent rating was assigned for severe lumbosacral strain manifested by listing of the whole spine to the opposite side with a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Effective in September 2003, evaluation of the Veteran's lumbar spine disability under DC 5242 (degenerative arthritis of the spine) is for application. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating diseases and injuries of the spine. See 38 C.F.R. § 4.71a. A 20 percent evaluation is warranted for 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is in order for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is in order for unfavorable ankylosis of the entire spine. Under the formula the "combined range of motion" refers to the sum 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. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Intervertebral disc syndrome can either be evaluated under the general rating formula as noted above or based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted 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 s. A 60 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Factual Background An April 2004 private treatment record reports that the MRI results showed quite significant disc disease of multiple levels, particularly the L4-5 level with disc protrusion to the right greater than the left. A June 2007 VA examination report noted the Veteran's complaints of intermittent lower back pain. He could only walk approximately two blocks before the onset of back pain. He reported having difficulty sleeping, particularly lying on his back and had become very limited in terms of his ability to do any physical work or minor maintenance activities around the house. He had used Celebrex and epidural injections for relief with "reasonable" results. On examination, his lumbar spine motion was noted to be quite limited. Range of motion of the lumbar spine was as follows: forward flexion to 45 degrees (with great stiffness); extension was barely beyond 0 degrees; rotation was to 10-15 degrees, bilaterally, and lateral bending was to 10 degrees, bilaterally. Repetitive testing slowed the speed of motion and led to complaints of back pain. The X -ray results showed degenerative scoliosis with curvature in the upper lumbar spine from L1-L3. There was total loss of disc space between L4-5 and significant narrowing and end plate sclerosis at the L5-S1 level. There was a bridging osteophyte with just mild narrowing of disc space at L3-4 and L2-3. L1-2 had an anterior osteophyte with mild to moderate narrowing of the disc space. A January 2009 private treatment record noted the Veteran's complaint of increased low back pain which caused him to lose his balance at times. In a March 2010 statement, the Veteran's private physician reported that the Veteran had severe disc disease and spinal stenosis at various levels with back pain. In an August 2010 statement, the Veteran's private physician reiterates that he had severe disc disease and spinal stenosis at various levels with back pain. Analysis At the outset, the Board notes that the Veteran was scheduled for VA examinations in July and September 2010 and March 2012 in conjunction with this claim. However, he failed to report to these examinations and indicated that he could not attend these examinations or any other examinations due to limitations he experienced because of his physical ailments and because the distance to the nearest facility capable of conducting VA examinations was too far for him to travel. A May 2012 report of general information indicated that there was no other VA facility in closer proximity capable of providing a VA examination. The evidence that is of record tends to show that the Veteran suffers from severe degenerative disease with pain that significantly limits his range of motion of the lumbar spine. Simply stated, the aforementioned evidence reflects that the service-connected DDD of the lumbar spine, status post laminectomy is productive of a disability picture that more nearly resembles that severe functional limitation of the lumbar spine or the functional equivalent of forward flexion of the thoracolumbar spine restricted to 30 degrees or less for the period of the appeal. As unfavorable ankylosis of the entire thoracolumbar has not been demonstrated, a higher initial rating is not warranted. Additionally, given that the Veteran is not shown to have experienced any incapacitating episodes of disc disease, a higher initial rating based on incapacitating episodes is not warranted. On these facts, the Board determines that an initial rating of 40 percent, but no higher, for the service-connected DDD of the lumbar spine, status post laminectomy is warranted the period of the appeal. The Board has applied the benefit-of-the-doubt doctrine in determining that the criteria for a 40 percent rating are met, but finds that the preponderance of the evidence is against assignment of a higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990). The above determination is based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point since the Veteran's claim for increase, has the disability been shown to be exceptional or unusual as to warrant the assignment of any higher ratings on an extraschedular basis. See 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the level of disability and symptomatology, and is found inadequate, the RO must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria reasonably address the lumbar spine disability under consideration. Accordingly, the threshold requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. ORDER An increased, initial 40 percent rating , but no more, for the service-connected DDD of the lumbar spine, status post laminectomy is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs