Citation Nr: 1317628 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 02-13 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than March 29, 2005, for the award of a 20 percent rating for the residuals of a pelvic fracture, with left sacroiliac joint dysfunction. (The issues of entitlement to a rating in excess of 20 percent for the residuals of a pelvic fracture with left sacroiliac dysfunction, entitlement to service connection for internal injuries secondary to a pelvic fracture, to include a digestive disorder, and entitlement to a rating in excess of 50 percent from December 8, 2004 for posttraumatic stress disorder, will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. The Veteran's appeal of the effective date for his 20 percent rating for residuals of a pelvic fracture comes to the Board of Veterans' Appeals (Board) from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied a compensable rating for residuals of a fractured pelvis. The Veteran perfected an appeal of that decision. During the course of the appeal, the RO issued a May 2005 rating decision granting a 20 percent rating for residuals of a fractured pelvis, effective March 29, 2005. The Veteran perfected an appeal of the effective date of the rating assigned. The increased rating claim, along with a secondary service connection issue, also perfected, will be the subject of a separate decision. This decision is limited to the issue of whether the 20 percent rating for the service-connected residuals of a fractured pelvis is warranted prior to March 29, 2005. In a March 2007 decision, the Board, in pertinent part, denied an earlier effective date for a 20 percent disability rating for residuals of a pelvic fracture. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2010 memorandum decision, the Court vacated the Board's March 2007 decision, and remanded this issue to the Board for additional action. In a January 2011 decision, the Board, in pertinent part, again denied an earlier effective date for a 20 percent disability rating for residuals of a pelvic fracture. The Veteran again appealed this decision to the Court. In January 2012, the Court issued an order that granted a Joint Motion for Remand (JMR) of the parties with respect to this claim. It is now again before the Board for readjudication in accordance with the JMR. The Board notes that the issues of entitlement to an earlier effective date for bilateral hearing loss, a right hip disability and a left hip disability, were also denied by the Board in January 2011. In the JMR, the parties noted that the Board's decision as to these issues was not being challenged. Thus, the Board's January 2011 decision is final in that regard. As a final preliminary matter, the Veteran testified at a hearing before a Veterans Law Judge at the RO in November 2006. A transcript of the hearing is of record. The Veterans Law Judge that conducted the hearing is no longer employed by the Board. The Board recognizes that the law requires the Veterans Law Judge who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C.A. § 7107 (c) (West 2002); 38 C.F.R. § 20.707 (2012). The Veteran was notified that the Veterans Law Judge that conducted his hearing was no longer employed by the Board by way of an April 2012 letter. He was offered the opportunity to have a new hearing, but in a letter dated later that month, his representative indicated that he did not wish to have a new hearing. Thus, the Board will decide the claim based upon the evidence of record without additional hearing testimony. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for service-connected residuals of a fracture to the pelvis was received by the RO on November 5, 2001. 2. The medical records and lay statements of record include no competent and credible evidence demonstrating that the Veteran's service-connected pelvic fracture with left sacroiliac joint dysfunction was manifested by limited motion to any degree, muscle spasm, guarding, localized tenderness, abnormal gait or abnormal spinal contour, vertebral body fracture, reversed lordosis or abnormal kyphosis, or weakened movement, fatigability, incoordination, pain on movement, swelling or atrophy due to disuse, earlier than March 29, 2005. CONCLUSION OF LAW The criteria for an effective date earlier than March 29, 2005, for the award of a 20 percent rating for the residuals of a pelvic fracture with left sacroiliac dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code 5292, 5294, 5295 (2001) and Diagnostic Code 5236 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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, and 5126 (West 2002 & Supp. 2012)) 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) (2012). 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) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. 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, the Board recognizes that the December 2001 letter to the Veteran provided requisite notice related to his increased rating claim, but was without notice related to effective date. In a March 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim of entitlement to an earlier effective date, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The Board recognizes that this notice was not issued prior to the decision on appeal. However, it is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA. Moreover, the Veteran has been represented by an attorney in this matter. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error.") The Veteran and his attorney have not indicated there is any outstanding evidence relevant to this claim, or that any prejudice has occurred due to the timing of the 2006 notice. 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 include the Veteran's service treatment records, post-service treatment records, VA examination reports, his hearing testimony, and several lay statements from both the Veteran and his representative. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for an earlier effective date. Additionally, the Veteran volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include during his appeal to the Court, nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the Veteran was 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. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. An earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date. 38 C.F.R. § 3.400(o)(2). The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, service connection was initially granted for residuals of a fractured pelvis by way of a December 1972 rating decision. A noncompensable rating was assigned. VA records show that in a March 1984 decision the Board denied the Veteran's claim for entitlement to a compensable rating for the residuals of a fracture of the pelvis. It was noted that examinations demonstrated full and unrestricted range of motion of the hips and that the pelvic disability was essentially asymptomatic. In correspondence received by VA on November 5, 2001, the Veteran requested entitlement to an increased rating for his service-connected pelvic fracture. Shortly thereafter, the RO afforded him a VA examination to assess the current severity of this service-connected disability. There is no evidence of record showing complaints related to the pelvic fracture residuals within one year of the November 2001 claim. It was the opinion of an August 2002 VA examiner that the Veteran had no orthopedic residuals as a result of his healed pelvic fractures. Upon examination, the examiner found a full range of motion of the bilateral hips. The Veteran denied pelvic pain and lateral hip pain, and there is no suggestion in this report that any pain was reported in the lumbar region. The Veteran, at this examination, did report that he no longer could run or play sports, due to abdominal pain. The VA examiner suggested that additional examination was warranted related to potential internal injuries, but made no indication that there was any limitation related to the orthopedic aspect of the Veteran's disability. Diagnostic tests from that time found hips with no pathology, and healed pelvic fractures with no significant incongruity throughout. Also, as to the Veteran's contention that he was limited in his ability to play sports, the Board notes that during his August 2002 VA posttraumatic stress disorder examination, the Veteran reported he has no social relationships, but that he tried to exercise and had tried multiple social activities including bowling and playing tennis. These reports by the Veteran are consistent with the findings in the August 2002 orthopedic examination that there was no pathology in the hips, but, the Board notes that the Veteran's reports related to physical activity in these two examinations are inconsistent. In one he reports that he is unable to participate in sports and in the other he reports participating in bowling and tennis. At his personal hearings before the RO in November 2002 and February 2004, however, the Veteran testified that he experienced intermittent pain and was unable to engage in outdoor activities. VA progress notes dated from November 2001 to July 2005 reveal no complaints of hip or pelvis pain, and there is no suggestion of pain in the lumbar region of the spine. Routine examinations of the abdomen were consistently without tenderness, and extremities showed no edema or cyanosis. A VA X-ray report dated in December 2004 found no evidence of fracture, dislocation, or other acute bone abnormality. There was no significant degenerative change to the hips. The impression was unremarkable examination of the hips. At the time of his March 29, 2005 VA examination, the Veteran did report low back pain and excruciating pain in the hips. He reported current problems including pain in the groin, as well as in the lower back, when he tries to perform any lifting activities. The VA examiner found the Veteran's complaints of back pain were related to a left sacroiliac joint dysfunction. An X-ray report from that time found mild bilateral superior joint space narrowing at the hips, and tiny marginal osteophytes. The impression was degenerative pelvic and hip changes. The diagnosis was moderate post-traumatic arthritis of the hips. The examiner stated that the injuries the Veteran sustained in June 1967 set up conditions for the later development of osteoarthritis/post-traumatic arthritis of the hips which onset approximately 15 to 20 years after the initial injury. X-ray films of the lumbar spine were also obtained, and the radiologist compared the hips and spine films to those obtained in December 2004. Regarding the spine, he noted the findings were stable since December 2004. However, he did not make the same assessment regarding the hips. In a May 2005 rating decision the RO granted separate 10 percent ratings for right and left hip post-traumatic arthritis, effective from March 29, 2005. The decision also granted an increased 20 percent rating for the residuals of a pelvic fracture with left sacroiliac joint dysfunction due to pain on motion and spasm. The rating was assigned as effective from March 29, 2005. The Veteran then appealed the effective date of the increase for residuals of a pelvic fracture with left sacroiliac joint dysfunction. During the course of the appeal, in particular in the JMR, the parties suggest that the March 2005 examiner's assessment of the Veteran's sacroiliac joint dysfunction as being a part of his pelvis injury, and manifesting 15 to 20 years after the initial injury, suggests that the symptoms warranting a 20 percent rating existed at the time the Veteran filed for an increase in November 2001. The Board does not dispute the notion that left sacroiliac joint dysfunction was suggested by the VA examiner to have been present at the time of the November 2001 claim. However, the question remains whether the symptoms related to the sacroiliac joint dysfunction were shown to warrant a 20 percent rating prior to the date of the March 2005 VA examination report. Again, the separate ratings for the hips were assigned and not challenged. For the purpose of the aspect of the Veteran's residuals of pelvic fracture involving sacroiliac joint dysfunction, the rating criteria related to spine disability will be examined. The Veteran's pelvic fracture with left sacroiliac joint dysfunction was awarded the 20 percent rating under Diagnostic Code 5010-5236, 38 C.F.R. § 4.71a (2012). During the course of this appeal, specifically on September 23, 2002, and once again on September 26, 2003, there became effective new regulations for the evaluation of service-connected disabilities of the spine. VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-00. Prior to September 23, 2002, limitation of motion of the lumbar spine was rated under Diagnostic Code 5292. A 10 percent evaluation was warranted for slight limitation of motion of the lumbar spine, and a 20 percent evaluation was warranted for moderate limitation of motion of the lumbar segment of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5292 (effective prior to September 23, 2002). At that time, Diagnostic Code 5294 addressed sacroiliac injury and weakness, although specific criteria were not provided for that code. Under Diagnostic Code 5295, which addresses lumbosacral strain, a 0 percent rating was assigned for slight subjective symptoms only. A 10 percent rating was assigned for lumbosacral strain with pain on motion. A 20 percent rating was assigned with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.71a (2012). The interim revised criteria related to the spine pertained to intervertebral disc syndrome, which is neither alleged nor shown in the evidence of record in this case. Thus, the rating criteria for intervertebral disc syndrome will not be further discussed. Under the schedular criteria which became effective September 26, 2003, Diagnostic Code 5236, which involves sacroiliac injury and weakness, is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of 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. 38 C.F.R. § 4.71a (2012). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Based upon the evidence of record, the Board finds that the competent and credible evidence does not demonstrate that the Veteran's service-connected pelvic fracture with left sacroiliac joint dysfunction was manifested by limitation of motion or muscle spasm at any time prior to March 29, 2005. There is no evidence to show or lay statements to suggest either a slight or moderate limitation of lumbar spine motion, or painful motion. And there are no measurements of lumbar spine motion such that a compensable rating could be warranted under the current rating criteria based upon degree of limitation. Also, there is no evidence in the record for the pertinent time period, to suggest that the Veteran's disability was manifested by muscle spasm, guarding, localized tenderness, abnormal gait or abnormal spinal contour, vertebral body fracture, reversed lordosis or abnormal kyphosis. Although the Veteran did occasionally report pain, as in the November 2002 and February 2004 RO hearings, there were no reports of pain rising to the level of compensable disability, such that an increase is warranted under DeLuca or 38 C.F.R. § 4.45. At no time did either the medical records or the Veteran suggest that he had pain on movement, swelling, deformity, or atrophy due to disuse. He was not shown to have incoordination or impaired ability to execute skilled movements, nor was there report of weakness or fatigability. Again, on examination, the Veteran was largely shown to have no symptoms. During motion of the hip, the Veteran did not report back pain prior to the March 2005 examination. In fact, the August 2002 examiner found he had no orthopedic residuals as a result of his healed pelvic fractures, and VA progress notes dated from November 2001 to July 2005 revealed no complaints of pelvis pain. It was not until the March 2005 VA examination that there were objective medical findings of a worsening pelvis disorder consisting of painful motion and spasm. It simply cannot be factually ascertained that an increase in the disability had occurred prior to March 2005. Again, the Board indeed recognizes the VA examiner's opinion that the left sacroiliac joint dysfunction existed at the time of the November 2001 claim. However, there is no competent and credible evidence that the symptoms related to this disability warrant a compensable rating until the date of the March 2005 VA examination. As to the Veteran's lay statements regarding his symptoms prior to March 2005, the Board finds that the Veteran is competent to describe his symptomatology regarding his claimed pelvis and hip pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, while the Veteran did report interference with his ability to play sports at one examination, the Board notes that at another examination at virtually the same time, he reported that he bowled and played tennis. Thus, the Board finds the Veteran's reports of limitation of activity due to pain to be internally inconsistent and not a reliable or credible source of evidence for an increase. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). The Board concludes that the medical findings on examination during this period are of greater probative value than the Veteran's allegations regarding the severity of his disability. On examination during this period of time, prior to the March 2005 examination, the Veteran was largely shown to be without symptoms related to his sacroiliac joint. Although the Veteran complained of pain during his November 2002 and February 2004 hearings, there were no objective findings of worsening residuals of a pelvis fracture, to include sacroiliac joint dysfunction, in the records prior to March 2005. Thus, while it may have existed at that time, it did not exist at a level of severity that warranted medical treatment or reports to VA examiners of symptoms. It was not until the March 2005 VA examination that there were objective medical findings of a worsening pelvis disorder consisting of painful motion and spasm, to include sacroiliac joint dysfunction. Without reports of symptoms to the requisite severity, it cannot be factually ascertained that an increase in the disability had occurred prior to March 2005. The Veteran was granted an increased 20 percent rating in a May 2005 decision based on the findings of the March 2005 VA examination. As stated previously, in cases involving increases, the effective date will be the date entitlement arose or the date of claim, whichever is later. An earlier date can be assigned if it is factually ascertainable that an increase in disability occurred. 38 C.F.R. § 3.400. In this case, the earliest date for which it is factually ascertainable that the Veteran had symptoms of his service connected pelvic fracture with left sacroiliac joint dysfunction which rise to the level of a compensable rating, was the date of the March 2005 VA examination. While the pelvic dysfunction is shown to have likely existed as of the date of his claim in 2001, there is no competent and credible evidence that the symptoms were of the requisite severity to warrant a compensable rating prior to March 29, 2005. Therefore, entitlement to an earlier effective date, prior to March 29, 2005, for a 20 percent disability rating for residuals of a pelvic fracture is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable concerning this issue. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date earlier than March 29, 2005, for the award of entitlement to a 20 percent rating for the residuals of a pelvic fracture, with left sacroiliac joint dysfunction, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs