Citation Nr: 1324506 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-21 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for service-connected degenerative disc disease and spondylosis of the thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which granted service connection for the thoracolumbar spine disability and assigned a noncompensable disability as of February 1, 2006. In August 2008, the RO granted an increased rating to 10 percent as of February 1, 2006. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2009, and the transcript of this hearing is of record. In June 2009, the Board remanded the appeal for further evidentiary development. In November 2011, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional treatment records and to afford the Veteran a VA medical examination. The action specified in the November 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In September 2012, the RO granted service connection for right L5 radiculopathy secondary to the Veteran's service connected degenerative disc disease of the thoracolumbar spine and assigned an initial 10 percent disability rating. The Veteran has not appealed and this issue is not before the Board. FINDINGS OF FACT 1. Prior to April 5, 2010, the Veteran's flexion of the thoracolumbar spine was 60 degrees and muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. As of April 5, 2010, the Veteran's thoracolumbar spine disability does not cause forward flexion of the thoracolumbar spine of 60 degrees or less; a combined range of motion of the spine of less 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. 3. The Veteran does not have a diagnosis of intervertebral disc syndrome of the thoracolumbar spine and has not been prescribed bed-rest by a physician for his low back disability. CONCLUSIONS OF LAW 1. Prior to April 5, 2010, the criteria for entitlement to an initial disability evaluation of no more than 20 percent for degenerative disc disease and spondylosis of the thoracolumbar spine have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. As of April 5, 2010, the criteria for entitlement to a disability evaluation in excess of 10 percent for degenerative disc disease and spondylosis of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran was granted entitlement to service connection for degenerative disc disease and spondylosis of the thoracolumbar spine in a December 2007 RO decision and assigned an initial non-compensable (0 percent) disability rating, effective February 1, 2006. In August 2008, the RO increased the Veteran's initial disability rating to 10 percent, effective February 1, 2006. The Veteran has appealed. In his written statements and oral testimony at his February 2009 hearing, he has complained that his current disability rating does not reflect the severity of his lumbar spine disability. He has described discomfort, painful motion, muscle spasms, fatigue, lack of endurance, weakness, and incoordination due to his service connected low back disability. The Veteran's low back disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2012). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2012). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In June 2006, the Veteran was afforded a VA examination of his low back disability. He described daily aching, throbbing pain in the right lower lumbar region. He reported flare-ups after prolonged sitting and standing or activity. He denied radiating pain, weakness, numbness, bladder incontinence, or bowel incontinence. On examination, the Veteran had normal posture and gait, but slightly unsteady heel to toe walking. The Veteran had mild thoracolumbar scoliosis and lumbar flattening, but no kyphosis or lordosis. There was no atrophy or hypertrophy. There was no palpable spasms or tenderness. Deep tendon reflexes, motor strength, and sensation were normal. Forward flexion of the thoracolumbar spine was from 0 to 90 degrees. Extension was from 0 to 30 degrees. Right and left lateral flexion were from 0 to 20 degrees bilaterally, limited by discomfort. Right and left lateral rotation was from 0 to 45 degrees bilaterally. The examiner reported that additional limitation due to repetitive use or flare-ups could not be determined without resorting to speculation. She concluded that the Veteran's low back disability-diagnosed with lumbago-would not cause any impairment in his activities of daily living or preclude employment. A December 2006 physical therapy evaluation from Santa Rosa Medical Center notes complaints of low back pain of 4/10 severity which worsens with sitting or standing. The Veteran was observed sitting with a head forward posture, rounded shoulders, increased thoracic curve, and decreased lumbar curve. Standing, he had forward head posture, rounded shoulders, sway back, and anterior pelvic tilt. He had increased muscle tightness in the thoracolumbar spinal muscles. There was tenderness to palpation of the left sacroiliac joint, right quadratus lumborum, right piriformis, and lumbar spine. Active range of motion of the trunk was decreased and painful. The Veteran also had decreased hip and trunk strength, decreased lower extremity flexibility, and abnormal gait. In February 2007, the Veteran submitted a private MRI report showing multilevel spondylosis of the thoracolumbar spine. At a March 2009 VA Physical Therapy Consult, the Veteran complained of chronic low back pain that occasionally radiates into his buttocks. The Veteran's gait was normal. He had decreased cervical lordosis and forward shoulder posture creating increased thoracic kyphosis and diminished lumbar lordosis. Forward flexion of the thoracolumbar spine was limited to 60 degrees. Extension was limited to 10 degrees. Motor strength in the lower extremities was normal, although the Veteran had tightness in the quadriceps and hamstring muscles. Deep tendon reflexes were intact. The Veteran was diagnosed with chronic low back pain and hypermobility of the left sacroiliac joint. In April 2010, the Veteran was afforded a new VA examination. The Veteran described constant low back pain and stiffness, exacerbated by bending and lifting. He reported treating his condition using a home stretching routine, as well as heat and ice as needed. He estimated that he missed a day of work every three months due to his low back problems, but does have to take extended breaks at work. On examination, forward flexion of the thoracolumbar spine was from 0 to 110 degree without limitations. Extension was from 0 to 30 degrees without limitation. Right and left lateral flexion was from 0 to 30 degrees bilaterally with complaints of pain in the left paravertebral muscles with left lateral flexion. Right and left lateral rotation was from 0 to 50 degrees bilaterally with complaints of pain in the left paravertebral muscles with left lateral rotation. There was no loss of function following repetitive motion. The examiner stated that any additional limitation of motion due to flare-ups could not be determined without resorting to speculation. There was some mild tenderness to palpation over the left sacroiliac joint, but otherwise no tenderness or muscle spasms. Posture and gait were normal. The Veteran could heel walk, toe walk, heel-to-toe walk, and perform quarter squats without difficulty. The Veteran was diagnosed with degenerative disc disease of the lumbar spine with minimal functional limitations. In February 2012, the Veteran was afforded a VA peripheral nerve examination. He denied doctor-prescribed bed-rest or incapacitation in the last twelve months. He also denied any emergency room visits or hospitalizations due to his disability. The Veteran reported that he had to take frequent extended breaks at his place of employment. On examination, motor strength was full and equal bilaterally in the upper and lower extremities. No gross sensory loss was noted. However, EMG testing showed right L5 radiculopathy. In September 2012, the Veteran was afforded his most recent VA examination of his thoracolumbar spine. He denied doctor-prescribed bed-rest or incapacitation in the last twelve months. He also denied any emergency room visits or hospitalizations due to his disability. He complained of worsening back pain, worsened by prolonged standing and heavy lifting. On examination, the Veteran had full range of motion of the thoracolumbar spine with no objective evidence of painful motion. He had no additional limitation of motion following repetitive testing. There was no tenderness to palpation or muscle spasms. He had full muscle strength in the lower extremities and no evidence of muscle atrophy. Reflexes and sensation were intact. Straight leg raising was negative. The Veteran did not have intervertebral disc disease or ankylosis of the thoracolumbar spine. An x-ray of the lumbar spine showed bilateral spondylosis at L5. The examiner noted that neither the most current x-ray nor past x-rays are compatible with the degree of subjective symptoms the Veteran reports. He further observed that there were positive Waddell's signs during examination which can indicate symptom magnification. Based on all the above evidence, the Board finds that entitlement to a disability rating of 20 percent for degenerative disc disease and spondylosis of the thoracolumbar spine is warranted prior to April 5, 2010, but as of that date, a disability rating in excess of 10 percent cannot be granted. At a March 2009 VA Physical Therapy Consult, the Veteran had forward flexion limited to 60 degrees, which just barely meets the criteria for a 20 percent disability rating under the General Formula. Additionally, the June 2006 VA examination, the December 2006 physical therapy evaluation, and the March 2009 physical therapy consult note evidence of abnormal gait and spinal posture, including thoracolumbar scoliosis, as well as tightness in the lumbar spine muscles. Thus, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture most closely approximates a 20 percent disability rating during this period on appeal. However, as he does not have forward flexion less than 30 degrees or favorable ankylosis of the thoracolumbar spine, a higher disability rating cannot be assigned under the General Formula. However, at the Veteran's April 2010 VA examination, the Veteran had full range of motion of the thoracolumbar spine with normal gait and posture and no muscle spasms or tenderness to palpation. Similar findings were made at the September 2012 VA examination. Although the Veteran subjectively reported a worsening of symptoms, his low back disability actually appears to have improved based on the objective medical evidence. While the Board has carefully reviewed and considered the Veteran's subjective complaints, in light of the lack of objective evidence of functional impairment, the Board finds that a disability rating in excess of 10 percent cannot be assigned to the Veteran's service connected low back disability as of April 5, 2010. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (Pain, by itself, throughout a joint's range of motion does not constitute a "functional loss" entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system, and "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."). The Board finds the objective medical findings more probative than the Veteran's subjective complaints. The Board has considered whether a higher disability rating could be assigned using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the Veteran does not have a diagnosis of intervertebral disc syndrome and there is no evidence that any of his treating physicians has ever prescribed periods of bed-rest to treat his low back disability. According, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not for application. The Board also notes that separate disability ratings can be assigned for neurological disabilities that develop secondary to a service connected back or spine disability. Here, the Veteran has already been granted entitlement to service connection for right L5 radiculopathy secondary to his service connected spondylosis and degenerative disc disease of the thoracolumbar spine. He has not appealed the initial disability rating assigned and there is no evidence that service connection for an additional neurological disability is warranted. While the Veteran has occasionally complained of bladder incontinence, on other occasions he has denied any bladder problems. Given his inconsistent statements and the absence of any objective medical evidence that his low back disability has caused bladder incontinence, the Board finds that a separate disability rating for this condition is not warranted at this time. Finally, the Board has considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. In conclusion, an initial disability rating of 20 percent for service connected degenerative disc disease and spondylosis of the thoracolumbar spine is granted prior to April 5, 2010. As of April 5, 2010, a disability rating is excess of 10 percent for service connected degenerative disc disease and spondylosis of the thoracolumbar spine is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records, and was provided an opportunity to set forth his contentions during the February 2009 Travel Board hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded VA medical examinations in June 2006, April 2010, February 2012, and September 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. These examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial disability evaluation of 20 percent for service connected degenerative disc disease and spondylosis of the thoracolumbar spine is granted prior to April 5, 2010. As of April 5, 2010, entitlement to a disability evaluation in excess of 10 percent for service connected degenerative disc disease and spondylosis of the thoracolumbar spine is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs