Citation Nr: 1313683 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 07-12 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 40 percent for degenerative disc and joint disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to an increased rating in excess of 40 percent for the service-connected lumbar spine disability. A timely appeal was submitted only with respect to that issue. FINDINGS OF FACT Degenerative disc and joint disease of the lumbar spine is manifested by forward flexion to 70 degrees without unfavorable ankylosis of the entire thoracolumbar spine or doctor prescribed bedrest for incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative disc and joint disease of the lumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran 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, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in April 2005, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He did not receive Dingess notice regarding how effective dates and ratings are assigned. The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as no effective date or rating is being set or altered, the Board has identified none. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided a proper VA examination in March 2012 to assess the severity of his lumbar spine disability. The report detailed the full physical examination, provided all necessary information regarding the severity of the Veteran's disability, and adequately explained the reason for finding no additional residuals of the lumbar spine disability. The issue on appeal was previously before the Board in January 2011, when it was remanded for additional development. In accordance with the remand instructions, the Veteran was issued a letter in February 2011 requesting that he provide authorization for VA to obtain any outstanding private treatment records, including from Baptist Medical Center. The Veteran's VA treatment records beginning in before the appellate period and private treatment records identified by the Veteran, including from Baptist Medical Center, were obtained and associated with the claims file. He was provided with the March 2012 VA examination and a supplemental statement of the case was issued in April 2012. Since the record reflects compliance with the January 2011 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran submitted a claim for an increased rating in January 2005 based on a worsening of symptomatology. The relevant focus for adjudicating the Veteran's claim is the period beginning January 2004, one year prior to the claim for increase. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2012). In this case, the Veteran's lumbar spine disability has been evaluated as 40 percent disabling under Diagnostic Code 5242 for degenerative arthritis of the lumbar spine. Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), a 40 percent evaluation is provided where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition 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. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5) (2012). Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. These criteria are an alternative to rating on the basis of orthopedic and neurologic manifestations under the General Formula for Diseases and Injuries of the Spine, and a rating is assigned on the basis of which method results in the higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2) (2012). In other words, under these criteria, the Veteran is potentially entitled to an increased evaluation on two bases: unfavorable ankylosis of the entire thoracolumbar spine or doctor prescribed bedrest for incapacitating episodes having a total duration of at least six weeks during the past twelve months In making these determinations, the Board has considered the findings from the March 2005 VA joints examination and March 2012 VA spine examination, as well VA and private treatment records and the Veteran's statements. A review of the cited evidence shows no indication whatsoever that the spine has been fixed in extension or flexion at any time during the appeal period. On examination and during outpatient treatment, the Veteran has demonstrated an ability to move the spine in all directions. The Board notes that the March 2012 VA examiner did not specifically state that there was no ankylosis in the examination report. However, the examiner did find that the Veteran was able to bend his lumbar spine in all directions, thus demonstrating the absence of ankylosis. Therefore, an increased rating under Diagnostic Code 5242 is not warranted. There have also been no periods of doctor-prescribed bedrest (e.g., incapacitating episodes) having a total duration of at least six weeks during the past twelve months resulting from the service-connected spine disability. The Veteran reported during the March 2005 VA examination that he had been bedridden due to his lumbar spine symptoms over the past year, with each episode lasting two-to-three days. There is no indication that this was doctor-prescribed bedrest and the total duration was less than six weeks. Therefore, the Veteran is not entitlement to an increased rating under Diagnostic Code 5243. Given the absence of such findings during the entire pendency of this appeal, there is no basis for a "staged" rating in this case because the severity has been essentially consistent in terms of the applicable diagnostic criteria. The Board notes the presence of complaints of radicular pain in the lower extremities during the appellate period. Indeed, they were noted in VA and private treatment records from 2004 to 2012, including in the March 2012 VA examination. However, myelogram results discussed in January 2006 revealed that the radicular pain was not from any lumbar spine compression disability. The physician stated that he could not pinpoint a cause that would be amenable to neurosurgery but suggested that it could be due to nerve root irritation due to increased uric acid levels related to gout. Moreover, the March 2012 VA examiner noted a sensory deficit of the feet and toes and found stocking distribution decreased about four inches above the ankles with decreased position and vibration sense in both. The examiner noted the Veteran's report of current treatment for a vitamin B12 deficiency. There was no evidence of myelopathy or radiculopathy on examination. Based upon a review of the claims file and the physical examination, the examiner diagnosed bilateral symmetric stocking distribution sensory peripheral neuropathy, not due to the service-connection lumbar spine disability, but more consistent with vitamin B12 deficiency. At no point during the appellate period has the Veteran been diagnosed with lumbar spine radiculopathy based on diagnostic testing. Rather, radicular symptoms have been attributed to factors other than the lumbar spine disability. Overall, there exists no basis under the schedular criteria for an increased rating in excess of 40 percent for the service-connected degenerative disc disease and degenerative joint disease of the lumbar spine, and the Veteran's claim for that benefit must be denied. 38 C.F.R. §§ 4.3, 4.7. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2012), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability. The Veteran's lumbar spine disability is manifested by loss of range of motion, pain, and muscle spasms. The rating criteria are based on a loss of range of motion and take into account the impact of pain and muscle spasms on functioning. 38 C.F.R. § 4.85. These manifestations are contemplated in the rating criteria. The rating criteria are, therefore, adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is, therefore, not warranted. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO denied TDIU during the course of this claim in 2006 and the Veteran did not appeal. In the event that there is anything in the record that implicitly raises an additional claim of TDIU, review of the overall evidence does not reflect that the Veteran's service-connected lumbar spine disability alone precludes employment. As discussed, the lumbar spine disability does not result in doctor prescribed bed rest and does not result in radiculopathy. Though limitation of function is exhibited, it is not shown that lumbar spine disability by itself precludes employment. Thus, entitlement to a TDIU due to his service-connected lumbar spine disability is not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an increased rating in excess of 40 percent for a degenerative disc and joint disease of the lumbar spine is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs