Citation Nr: 1301532 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-07 161 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE 1. Entitlement to an rating in excess of 20 percent for the service-connected lumbosacral spondylosis with herniated nucleus pulposis, prior to February 12, 2011. 2. Entitlement to a rating in excess of 40 percent for the service-connected lumbosacral spondylosis with herniated nucleus pulposis, beginning on February 12, 2011. 3. Entitlement to an evaluation in excess of 10 percent for the service-connected degenerative osteoarthritis, right knee. 4. Entitlement to an evaluation in excess of 10 percent for the service-connected degenerative osteoarthritis, left knee. 5. Entitlement to service connection for claimed gastroenteritis. 6. Entitlement to service connection for claimed gastroesophogeal reflux disease (GERD). 7. Entitlement to a rating in excess of 10 percent for the service-connected hypertension with erectile dysfunction due to medications. 8. Entitlement to service connection for claimed obstructive sleep apnea. 9. Entitlement to service connection for a claimed rectal condition with polyps. 10. Entitlement to service connection for a claimed right upper quadrant condition. 11. Entitlement to service connection for claimed tinea pedis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO. FINDINGS OF FACT 1. On September 4, 2012, prior to the promulgation of a decision on the appeal, the Board received notification that the Veteran intended to withdraw his appeal as to all issues except that claiming a rating in excess of 20 percent for the service-connected lumbosacral spondylosis with herniated nucleus pulposis L4,5-S1, prior to February 12, 2011. 2. Beginning in February 2009, the service-connected lumbosacral spondylosis with herniated nucleus pulposis L4,5-S1 is shown to have been productive of disability picture that more nearly resembled that of flexion of the thoracolumbar spine restricted to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issues of an evaluation in excess of 10 percent for the service-connected hypertension with erectile dysfunction; service connection for obstructive sleep apnea; service connection for rectal condition with polyps; service connection for right upper quadrant condition; service connection for tinea pedis; a rating in excess of 40 percent beginning February 11, 2012 for the service-connected lumbosacral spondylosis with herniated nucleus pulposis, L4,5-S1; a rating in excess of 10 percent for the service-connected degenerative osteoarthritis, right knee; a rating in excess of 10 percent for the service-connected degenerative osteoarthritis, left knee; service connection for gastroenteritis; and service connection for GERD, by the Veteran (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for the assignment of a rating of 40 percent for the service-connected lumbosacral spondylosis with herniated nucleus pulposis L4,5-S1, beginning in February 2009 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 5239 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran and his authorized representative have withdrawn his appeal with respect to the issues of an evaluation in excess of 10 percent for the service-connected hypertension with erectile dysfunction; service connection for obstructive sleep apnea; service connection for rectal condition with polyps; service connection for right upper quadrant condition; service connection for tinea pedis; a rating in excess of 40 percent beginning on February 11, 2012 for the service-connected lumbosacral spondylosis with herniated nucleus pulposis, L4,5-S1; a rating in excess of 10 percent for the service-connected degenerative osteoarthritis, right knee; a rating in excess of 10 percent for the service-connected degenerative osteoarthritis, left knee; service connection for gastroenteritis; and service connection for GERD. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to those issues, and the appeal to this extent is dismissed. Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in February 2008 which explained how VA could assist him with developing evidence in support of his claim. It also explained that in order to receive an increased rating for a service connected disability, he needed to show that it got worse, and explained the manner whereby VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, written statements by the Veteran and family members, private treatment records, and a VA examination was provided in connection with the claim. For these reasons, the Board finds that VA satisfied its duties pursuant to VCAA in this case. Increased Rating The Veteran contends that, prior to February 12, 2011, his service-connected lumbar spine condition was more than 20 percent disabling. He argues that the current 40 percent rating should be assigned for this period because the decrease in spinal mobility was present before the February 12, 2011 VA examination. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Spinal disabilities are rated pursuant to the "General Rating Formula for Diseases and Injuries of the Spine." 38 C.F.R. § 4.71a. A 20 percent rating applies when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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 an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating applies when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating applies when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating applies when there is unfavorable ankylosis of the entire spine. Id. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In cases of intervertebral disk syndrome, alternative rating criteria based on incapacitating episodes are available. However those rating criteria are inapplicable in this case because the Veteran is not diagnosed with intervertebral disk syndrome and he has not had sufficient incapacitating episodes to warrant a rating in excess of 20 percent in any event. At a VA examination dated in March 2008 the Veteran reported having stiffness and low back pain. There was no weakness. The pain occurred four times per week and lasted one day. It traveled to the back of his right leg. Pain could be elicited by physical activity and prolonged standing and was relieved by rest and medication. At the time of pain, he could function with medication. He reported being incapacitated for two days due to back pain in October 2007. The Veteran's posture and gait were noted to be within normal limits. Spinal curvature was normal, and there was symmetry of spinal motion. The range of motion of the thoracolumbar spine was to 60 degrees of flexion with pain at 60 degrees, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The private treatment records from July 2008, October 2008 and February 2009 document the Veteran's complaints of having low back pain. A letter from a coworker of the Veteran dated in February 2009 stated that the Veteran "suffered greatly" with his knees and back and missed a lot of time from work due to his back and bilateral knee disability. In February 2009 the Veteran's wife wrote that the Veteran suffered from chronic knee and back pain. In a February 2009 statement, the Veteran reported that he was constantly using sick leave as a result of his back and knee pain. In February 2009, he reported having back pain and spasm that resulted in two days off of work. He felt that his quality of life was affected by his back pain. On February 12, 2011 the Veteran was afforded a VA examination that noted less than 30 degrees of forward flexion, and his rating was increased to 40 percent as of that date. The Veteran stated that he did not disagree with the currently assigned 40 percent rating, but believed that this rating should have been assigned prior to that date. In an April 2012 statement, the Veteran wrote that he felt that the 40 percent rating should be assigned from February 2009 because he had submitted documentation showing that he continued to have back pain at that time and that if he been examined earlier than February 12, 2011 he would have been found to have forward flexion limited to 30 degrees or less. As noted, the VA examination performed in March 2008 showed that the Veteran had 60 degrees of forward flexion of the thoracolumbar spine; this is consistent with a 20 percent rating. Significantly, the Veteran submitted treatment records showing that he had increased back pain in February 2009. Given the Veteran's credible lay assertions of having increased low back impairment, these records tend to shown that the service-connected low back disability had chronically worsened beginning on that date. As such, the Board finds that the service-connected disability picture was productive of a level of functional impairment that more closely approximated that of forward flexion of the thoracolumbar spine being restricted to 30 degrees or less beginning in February 2009. Accordingly, on this record, an increased rating of 40 percent is warranted for the service-connected low back disability beginning in February 2009. ORDER The appeal of the claims for a rating in excess of 40 percent for lumbosacral spondylosis with herniated nucleus pulposis, L4-5, S1 beginning February 12, 2011; a rating in excess of 10 percent for hypertension with erectile dysfunction due to medications, a rating in excess of 10 percent for degenerative osteoarthritis, right knee, and a rating in excess of 10 percent for degenerative osteoarthritis, left knee, is dismissed. The appeal of the claims of service connection for obstructive sleep apnea, gastroenteritis, GERD, a rectal condition with polyps, a right upper quadrant condition and tinea pedis is dismissed, An increased rating of 40 percent for the service-connected lumbosacral spondylosis with herniated nucleus pulposis, L4,5-S1, beginning in February 2009 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