Citation Nr: 1310776 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-12 865 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 20 percent for lumbar degenerative joint disease ("a low back disability"). REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from March 2001 to April 2006. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which granted a 20 percent rating effective September 12, 2007. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. Additionally, the Board notes that the Veteran filed a letter in October 2009 in response to an August 2009 rating decision denying service connection for migraine headaches. In January 2010 the RO sent a letter to the Veteran in response informing the Veteran if he wanted to further appeal the issue he must file a Notice of Disagreement. Additionally, a congressional inquiry was received in February 2010 asking the status of the migraine headache claim, to which the RO also responded with a letter indicating that if the Veteran wished to further his appeal he needed to file a Notice of Disagreement. The Veteran did not respond to either the RO's January 2010 letter or to the letter to his congressman. As such, the rating decision regarding migraine headaches is now final and the Board does not have jurisdiction over that issue. FINDINGS OF FACT 1. The Veteran has not been shown to have required prescribed bed rest totaling at least four weeks during any twelve month period during his claim to treat incapacitating episodes of intervertebral disc syndrome. 2. Even considering functional limitation caused by pain, weakness, stiffness, fatigability, and lack of endurance, etc., the forward flexion of Veteran's back has not been shown to have been effectively limited to 30 degrees or less. 3. A separate neurologic disability, secondary to the Veteran's back condition, has not been diagnosed based on objective testing. 4. Neither ankylosis of the spine nor a spinal fracture has been shown. CONCLUSION OF LAW Criteria for a rating in excess of 20 percent for a lumbar degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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 propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As such, all evidence from one year before the date of claim will be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran was granted service connection for his back in an April 2008 rating decision, which assigned a 20 percent rating as of the date his claim was received. The Veteran filed a notice of disagreement seeking a rating in excess of 20 percent. Therefore the Board will consider the appropriateness of the rating initially assigned, as well as whether any 'staged rating' is required throughout the course of the appeal. See Fenderson, 12 Vet. at 126. The regulations provide that back disabilities are to be rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 1 week, but less than 2 weeks, during the past 12 months; a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. 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. Id., Note (1). As will be discussed, there is some indication that the Veteran may experience incapacitating episodes of intervertebral disc syndrome, or at least experienced them during the course of his appeal. However, treatment of the incapacitating episodes has not been shown to have required prescribed bed rest totaling at least four weeks during any twelve month period during the Veteran's claim. No incapacitating episodes of intervertebral disc syndrome were described at the Veteran's initial VA examination in October 2007. Similarly, no incapacitating episodes were noted in the Veteran's treatment records from 2007 through 2010. The Veteran has similarly not alleged that treatment of his back disability has required at least four weeks of bed rest during any twelve month period during the course of his appeal. In October 2012 the VA examiner acknowledged that the Veteran had experienced incapacitating episodes of intervertebral disc syndrome during the previous 12 months, but estimated that incapacitating episodes had lasted fewer than two total weeks during that time. That is, using the rating formula for IVDS would only warrant a 10 percent rating. As discussed, no other medical evidence found the Veteran had IVDS with incapacitating episodes during the appeal period. The Veteran has not specifically asserted otherwise. Therefore the Veteran's only history of incapacitating episodes is not of a protracted enough period as to warrant a rating in excess of 10 percent under the Formula for Rating IVDS. As such, because the Veteran has already been assigned a 20 percent rating under the schedular criteria for General Rating Formula for Diseases and Injuries of the Spine, that Formula necessarily affords him the higher evaluation and will therefore be used to evaluate the claim. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless either ankylosis or a fractured spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the regulations direct that any neurologic impairment should be rated separately and then combined with the orthopedic rating. In this case, the Veteran was provided with a VA examination in October 2007 at which he complained of lower back pain which began while he was in service. The Veteran explained the pain felt like a burning sensation in his lower back, but became sharp with movement. He rated his pain between 3 or 4 out of 10. The Veteran asserted that his pain was aggravated by prolonged sitting and standing, by repetitive bending, and by lifting. He stated that after several hours of these activities his pain became 9 out of 10 and radiated down his left hip and leg. The Veteran also reported that during service he was told his right leg was shorter than his left. He was reportedly given shoes in which the right shoe was built up, but he denied any change in his level of back pain when wearing the adjusted shoes. The Veteran did not report any incapacitating episodes, and denied missing any work at the factory due to his back pain. The examiner opined the Veteran's back pain did not limit his activities of daily living. Range of motion testing revealed forward flexion of the lumbar spine to 45 degrees, minimal extension due to pain, and lateral flexion of the lumbar spine 20 degrees bilaterally. The examiner noted that straight leg test of the right leg caused low back pain, but there was no radiating pain or numbness/tingling associated with the straight leg raises on either side. Examination revealed that the Veteran had a slight increase in lordosis, or inward curvature, of the lumbar spine. X-rays showed normal height of invertebral discs with minimal degenerative changes at L5-S1. The examiner diagnosed the Veteran with a low back sprain. The Veteran was also treated at a VA facility in October 2007 at which time he reported constant, sharp pain in his lower back which was exacerbated by movement and exercise and was generally alleviated by rest. He stated that the pain was mainly located along the lower back but on rare occasions would shoot into his legs. He indicated that following exertion, when really tired, he would occasionally experience pins and needles in his left lower extremity. A motor examination revealed 5/5 strength in all four extremities. There was some tenderness in the movements of the lower extremities, but the doctor did not appreciate any focal weakness. Sensory testing was normal to pinprick, position, and vibration. Reflexes were symmetric and 1+ in all four extremities, including his left leg. In November 2007, an MRI was taken of the Veteran's lower back. The MRI revealed mild disc space narrowing at L1-2, as well as posterior disc bulge and mild stenosis, narrowing of the spinal canal. At L3-4 the Veteran had focal posterior central disc protrusion which was superimposed on broad-based disc bulge, as well as 'very mild' central spinal canal stenosis. At L5-S1 the MRI revealed bilateral mild hypertrophic degenerative facet, enlargement of the facet joint. The physician interpreting the MRI opined the Veteran had a minor abnormality. In October 2008, the Veteran back pain that was 4 out of 10, but straight leg testing was negative bilaterally and he exhibited a good range of motion. The physician did note that the Veteran's lower lumbar area was tender to palpation. The next month, in November 2008, another MRI was taken of the Veteran's spine which revealed multilevel disc disease, as well as new disc fragment at L3-L4. In December 2008, the Veteran was seen by VA neurosurgery. He stated that he experienced occasional (less than weekly) pain down his right buttock across his anterior thigh to his knee. He reportedly walked miles each day without leg problems. There was no change in bowel or bladder and the Veteran denied any leg pain, weakness, or change in sensation. On examination, sensory testing showed light touch, pinprick, vibration and position sense were all intact distally in all four extremities. Motor testing showed normal muscle tone and bulk, without any tremor or abnormal movements. Strength testing was 5/5 in all tested spots. Reflexes were +2 (normal) in the Veteran's lower extremities. Straight leg raises were negative bilaterally. Beginning in late 2008 the Veteran began to seek additional forms of treatment for his back pain. For instance, in December 2008, his physician recommended he begin physical therapy for his lower back pain. In May 2009, the Veteran received an epidural injection in his back, but he found that the injection did not alleviate his pain. He also reported that his medications, including Vicodin, no longer helped the pain. In June 2009, the Veteran received a second epidural injection in his back. The physician examined the Veteran and noted decreased lumbar extension due to an increase in pain, as well as a slight curvature of the spine with muscular imbalance. However, the physician did not perform any objective testing to assess the range of motion of the Veteran's lumbar spine. In June 2009, a neurologic assessment found no focal motor or sensory loss. Deep tendon reflexes were symmetrical but diminished. In December 2009, the Veteran again reported his pain had increased, describing the pain as a constant dull ache which occasionally became sharp. He reported the pain was centered in the middle of his lower back and extended onto either side. The Veteran reported that without any pain medication his pain was 10/10, but was reduced to 4 or 5 with medication. The Veteran reported the lumbar epidural injections did not help, and stated that he continued to receive physical therapy multiple times per week. The Veteran reported he was now considering surgery on his back. The physician diagnosed lumbosacral degenerative disc disease with lumbosacral spondylosis and chronic low back pain. The physician recommended the Veteran should continue his current treatment plans and try acupuncture. In March 2010, the Veteran filed his substantive appeal with the Board, asserting that his condition had worsened and requesting a new VA examination. That same month an MRI was taken of the Veteran's spine which showed small central extruded disc herniation with movement towards the interior at L3-L4, as well as small left central disc protrusion at L4-L5. In June 2010 the Veteran returned to his physician and reported taking hydrocodone, flexeril, and valium for his pain. The examiner observed that a straight leg test in a seated position was negative bilaterally. The Veteran's requested examination was performed in October 2012. He reported persistent lower back pain of approximately 5 out of 10 severity which was localized right above the waist belt line and radiated from the center to both sides of the tailbone. He also reported flare-ups of his pain on exertion, for example when he remained on his feet for too long. The Veteran specifically reported that around three weeks earlier he was shoveling when he felt something 'pop' in his back, and he reported having to lay in bed for three days in order to recover from the pain flare-up. The Veteran had treated his pain with medication, physical therapy, electrical nerve stimulation, and hot and cold treatment. The Veteran reported that in June 2011, a neurosurgeon had suggested that he would be a good candidate for surgery, but recommended he hold off since he was still so young. Range of motion testing at the examination revealed the following: forward flexion of 45 degrees, with pain beginning at 20 degrees; extension of 25 degrees with pain occurring at 10 degrees; lateral flexion of 25 degrees with pain beginning at 10 degrees bilaterally; and lateral rotation of 25 degrees with pain beginning at 10 degrees bilaterally. The examiner then conducted repetitive-use testing , which reduced the Veteran's forward flexion to 40 degrees and his extension to 20 degrees. However lateral flexion and rotation remained the same with 25 degrees bilaterally. The examiner opined the Veteran did have functional loss, including weakened movements and less mobility than normal. The Veteran also had excess fatigability, pain on movement, and interference with standing, sitting, and weight bearing. The Veteran reported he was not currently working, and had not worked since April 2008. He stated he could not keep his job at the factory because he could not stay on his feet for eight hours. However, the Veteran attended school from 2008-2012 and earned a general education degree in July 2012. The examiner opined that the Veteran's back condition did impact his ability to work because his pain limited his bending and lifting and prevented him from being able to do standing work eight hours a day. Nevertheless, the Veteran had been looking for jobs at a number of companies. The Board has reviewed all of the evidence associated with the claims file and has determined that although the Veteran's back condition appears to have worsened over the course of his appeal, it did not worsen to a degree which would merit a disability rating in excess of 20 percent. As discussed above, the Veteran is currently rated at 20 percent for his service connected low back disability. Aside from incapacitating episodes of intervertebral disc syndrome, a back rating in excess of 20 percent requires at least one of the following: forward flexion of the thoracolumbar spine to be limited 30 degrees or less, both neurologic and orthopedic impairment, ankylosis, or a spinal fracture. However, as will be discussed, the evidence of record does not show that any of these criteria for a higher rating have been met during the course of the Veteran's appeal. Range of motion testing has consistently showed that the Veteran had forward flexion in excess of 30 degrees. For example, at both his October 2007 and October 2012 VA examinations, the Veteran demonstrated forward flexion to 45 degrees. No additional range of motion testing appears to have been conducted during the course of the Veteran's appeal, and a review of the VA treatment records shows only that the Veteran was noted to have exhibited a good range of motion in October 2008. As such, the range of motion demonstrated by the Veteran during the course of his appeal greatly exceeds the 30 degree limit for a higher rating. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, at the Veteran's VA examination in October 2012, it was noted that pain began after 20 degrees of forward flexion and that after three repetitions, the Veteran's range of motion was decreased to 40 degrees. The examiner noted that repetitive motion also caused weakened movement, excess fatigability, pain, and interference with sitting, standing and/or weight bearing. However, despite these functional limitations, the Veteran still demonstrated 40 degrees of forward flexion after repetitive motion. The Board acknowledges that the Veteran experienced some pain beginning at 20 degrees of forward flexion; however, even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not, as the evidence showed that repetitive motion caused the pain to occur earlier, but the repetitive motion only limited the Veteran's range of motion to 40 degrees, which exceeds the 30 degree limitation for a 40 percent rating. Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion. The regulations also provide that any neurologic impairment (to the extent one is found to exist) should be rated separately and then combined with the orthopedic rating. However, as will be discussed, the evidence does not establish that the Veteran has had a separate neurologic disability during the course of his appeal. Review of the Veteran's treatment records for the period on appeal does show some complaints of pain radiating into his lower extremities. For example, in October 2007 the Veteran reported that on rare occasions, every 4-5 months, he would experienced back pain that radiating into his legs and a right straight leg raise test did trigger some lower back pain. However, the VA examiner found no radiating pain or numbness on objective evaluation, and no neurologic impairment was actually diagnosed. A neurology consult was conducted that same month which showed motor testing to be 5/5 in all four extremities. The doctor indicated that the Veteran had some tenderness in his lower extremities, but he did not appreciate any focal weakness. Sensory testing was normal to pinprick, position and vibration. Reflexes were 1+ and symmetric. No neurologic disability was diagnosed. In October 2008, straight leg raise testing was negative bilaterally. Similarly, at a neurosurgery consult in December 2008, sensory testing was intact in all four extremities. There was normal muscle strength and tone in all limbs, as well as normal reflexes. In December 2009, it was noted that the Veteran had experienced no numbness, tingling or radiation of pain in his lower extremities. There had been no recent changes in bowel or bladder and no saddle anesthesia. Muscle strength was 5/5 in the lower extremities; sensation to touch was intact; muscle stretch reflex was normal, and straight leg raises were negative. In March 2010 straight leg testing was repeated and still negative bilaterally. Finally, at the Veteran's October 2012 examination the examiner specifically found that the Veteran did not have any neurologic abnormalities or findings related to his thoracolumbar spine condition. The examiner noted negative straight leg raises bilaterally and indicated no signs or symptoms of radiculopathy were noted. As such, the objective medical testing that is of record does not establish that the Veteran experienced a separate neurologic abnormality at any point during the period on appeal. While the Veteran voiced occasional complaints of radiating pain, objective testing consistently failed to lead to the diagnosis of any separate neurologic disability. Additionally, no evidence has been presented suggesting the presence of either ankylosis of the spine, favorable or unfavorable, or a spinal fracture. Therefore, as described, the Veteran has not established any of the criteria associated with a 40 percent impairment. All disability ratings above 40 percent require ankylosis of the entire spine, which, as discussed, is not present in the Veteran. On several occasions during the course of his appeal, the Veteran has reported that his pain in his lower back has increased; and as discussed above, the medical evidence does support such a conclusion. In his substantive appeal, the Veteran asserted that his back had worsened and requested a new examination. The Veteran explained that since the 2007 examination, he had lost movement, range of motion, and the ability to walk for extended periods of time. He also reported problems putting on socks, and holding his daughter on account of back pain. Given the Veteran's report of increased symptomatology, he was provided a second examination which confirmed that his lower back disability had become more symptomatic. However, testing conducted at the examination did not show that a rating in excess of 20 percent was warranted. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as low back pain or radiating pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion such as whether he has a neurologic disability secondary to his back disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has given consideration to the Veteran's assertions of increased pain, but finds that while pain may have increased, it has not been shown to so functionally limit him that a higher rating would be warranted. As discussed, the Veteran was shown to have pain on range of motion testing, but the pain was simply not shown to so limit his forward flexion as to warrant a higher schedular rating. Similarly, while the Veteran has complained of pain radiating into his lower extremities, the fact remains that no neurologic disability has been diagnosed at either VA examination or in any of the VA treatment records, including at neurologic and neurosurgery consultations. Therefore, the schedular rating criteria for a rating in excess of 20 percent for a back disability have not been met, and the Veteran's claim is therefore denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability that would render the schedular criteria inadequate. The Veteran's main symptom is pain, which is specifically contemplated in the schedular rating that was assigned. At the Veteran's October 2012 VA examination it was noted that the Veteran was unemployed and there was some indication that the Veteran had some work restrictions in that he was unable to do standing work and he experienced back pain with bending and lifting. However, the Veteran had gone back to school to obtain additional training and had applied for a number of positions since graduating. Therefore, while some impairment with employment might be attributable to the Veteran's back, the disability rating that he is assigned is given in contemplation that his disability causes some interference with employment. However, given that the Veteran appears to be capable of working full-time, albeit with some interference, it cannot be said that the Veteran's service connected back disability causes marked interference with employment. Likewise, there is no suggestion that the Veteran's back disability has required any, much less frequent, hospitalizations. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his service connected back disability, but instead that he is currently a full-time student who is actively looking for employment. Thus, the Board finds that Rice is inapplicable since there is no allegation of unemployability due to the Veteran's service connected back disability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for a lower back disability was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records were obtained, as were VA treatment records. Unfortunately the records from the Veteran's physical therapy at a private facility are not included in the claims file. In July 2010 the Board sent a Veteran a letter requesting him to complete a release of medical information form so that the Board could obtain these private physical therapy records. However, the Veteran never responded to the Board's request. Therefore the Board fulfilled their duty to assist, but were unable to obtain the private records without participation from the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding the duty to assist is not a one-way street). Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but never responded to request a hearing. The Veteran was also provided with two VA examinations of his back (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. It is noted that the Veteran wrote a statement in November 2012 indicating that his back had worsened during the course of his appeal. However, he did not specifically indicate that his back had worsened since the October 2012 VA examination, and therefore an additional examination is not necessary. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for a low back disability is denied. ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs