Citation Nr: 1328107 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 05-34 261 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 40 percent for the service-connected lumbar strain with lumbar disc disease. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to October 1974. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a June 2012 rating decision issued by the Regional Office (RO). The Board remanded the case to the RO for additional development of the record in June 2012. It has now been returned to the Board for the purpose of appellate disposition. FINDINGS OF FACT The service-connected low back disability is not shown to be manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes lasting at least six weeks during a twelve month period. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 40 percent for the service-connected low back disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in December 2003, prior to the rating decision at issue, which informed him of how VA could assist him with developing evidence in support of his claim. It also explained that to achieve a higher rating for a disability, the evidence had to show that it got worse. In March 2006, the Veteran was sent a letter that explained how VA assigned ratings and effective dates for service connected disability. In July 2008, he was also sent a letter that explained how VA assigned disability ratings and which provided the specific criteria for evaluating diseases and injuries of the spine. The Veteran's claim was thereafter readjudcated, most recently in a July 2013 Supplemental Statement of the Case (SSOC). The Veteran was given the opportunity to submit additional evidence in support of his claim prior to this readjudication, but did in fact submit additional evidence. Thus, there was no prejudicial error in the timing of the notices. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, both paper and electronically stored VA treatment records, private treatment records, lay statements from the Veteran and his wife, and a transcript of his testimony at the February 2007 hearing. In accordance with the June 2012 remand, the Veteran was sent a letter in June 2012 that requested that he identify any additional health care providers who have treated him for the service-connected low back disability. The Veteran did not respond to this letter. The Board finds that all relevant evidence associated with the claim has been obtained; there is no indication that additional evidence exists that could support the Veteran's claim. The Veteran was provided several VA examinations in connection with his claim. While the initial examinations did not fully document the functional effects of the service-connected low back disability, the recent examinations were more thorough in comprehensively documenting the Veteran's symptoms and their effects on employment and daily life. The most recent examination was conducted in January 2013 in accordance with the June 2012 remand instructions. While examiner did not offer a specific comment on ankylosis as requested in the remand, he did provide range of motion findings. Since ankylosis refers to the immobility of a joint, his report did contain implicit findings as to ankylosis. The Board also notes that there is no medical or lay evidence of ankylosis anywhere in the record. Additionally, with respect to incapacitating episodes of intervertebral disc syndrome, the examiner indicated that there was no evidence of intervertebral disc syndrome. While not specifically stated, it establishes that there were no incapacitating episodes due to intervertebral disc syndrome. The remainder of the Board's instructions was specifically addressed in the opinion. The Board finds that VA satisfied its obligations pursuant to VCAA and that there was substantial compliance with the June 2012 remand. Increased Rating The Veteran contends that the assigned 40 percent rating does not reflect the severity of the service-connected low back disability. Throughout most of the appeal period, he has asserted that he should receive a higher rating due to the amount of pain that he experiences. More recently, he asserts that he is entitled to a 60 percent rating based on the frequency of his claimed incapacitating episodes due to intervertebral disc disease. The Veteran is service connected for radiculopathy of his lower extremities and bladder incontinence as secondary to the service-connected low back disability. The Veteran has not appealed either of these ratings, so they need not be addressed at this time. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The service-connected low back disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Disorders of the spine are rated using a general formula. Pursuant to the general rating formula for diseases and injuries of the spine, an evaluation of 40 percent is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. These rating criteria apply 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. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. There are also alternative criteria for rating intervertebral disc syndrome based upon incapacitating episodes. Under the alternative criteria, a 40 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six, weeks during the previous 12 month period. A 60 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the previous 12 month period. 60 percent is the highest rating based upon incapacitating episodes. Id. The Veteran's written submissions and testimony attest to the fact that he experiences severe back pain. He stated that he could not work due to the severity of the pain and has been granted a total disability rating based on individual employability (TDIU) by reason of service-connected disability. His wife wrote that the Veteran's back pain got worse over the years and limited all of his daily activities. His treatment records document continued complaints of low back pain. The Veteran was examined by VA in connection with this claim in January 2004. At that time, he complained of chronic lower back pain with discogenic disease. The pain radiated down his legs. He used a cane to walk and could walk approximately two blocks with difficulty. Prolonged sitting aggravated the pain, and he had been taking prescription pain killers. An examination of the spine showed the presence of severe muscle spasms. He displayed a range of motion with forward flexion from 0 to 60 degrees, extension from 0 to 10 degrees, lateral rotation from 0 to 15 degrees, and lateral flexion from 0 to 15 degrees. At that time, a neurological examination was noted to have been normal. The diagnostic impression was that of herniated disk, multi-level lumbar disc herniations with lumbar radicular features with clear evidence of a moderate degree of reduction in endurance, but no evidence of incoordination. The Veteran was next examined in June 2005 and reported having tightness and spasms in his lower back muscles. He described pain radiating down both legs and some paraesthesias involving the legs. He could walk only a half block. He continued to use prescription pain killers. His activities of daily living were independent. He reported that he had not been bedridden in the past 12 months, but his symptoms did require bed rest. An examination of the spine showed tenderness and spasms of the lumbar spine region. The range of motion testing showed findings of forward flexion from 0 to 40 degrees, extension from 0 to 10 degrees, lateral flexion from 0 to 15 degrees, and lateral rotation from 0 to 15 degrees. There was no additional loss of motion after repetitive use. Some neurological abnormalities were noted. The Veteran was again examined in April 2007. At that time, it was remarked that he had a known history of intervertebral disc disease of the lumbar spine. He described having tightness, stiffness, aching and spasms in the lower back present every day and pain that radiated down his legs. He could walk for about 10 minutes with the use of a cane. He had no significant history of flares. An examination of the lumbar spine showed that there was tenderness and spasm. The range of motion testing showed that forward flexion was from 0 to 30 degrees, extension was from 0 to 10 degrees, lateral rotation was from 0 to 15 degrees, bilaterally, and lateral flexion was from 0 to 15 degrees, bilaterally. Three repetitions did not cause any additional loss of motion due to factors such as pain, weakness, fatigue or incoordination. Pain was present throughout the entire range of motion. The Veteran was examined again in September 2008 and reported having constant moderate to severe pain. He presented with a moderately slow antalgic gait and was using a cane. He reported having difficulty sitting for more than one half hour, standing and walking for more than 15 minutes, and bending and lifting more than 10 pounds. He denied having flare ups of his low back disability. An examination of the lumbar spine showed that he had 0 to 50 degrees of flexion, 0 to 20 degrees of extension, 0 to 20 degrees of left and right lateral flexion, and 0 to 20 degrees of left and right rotation. After three repetitions, there was no additional loss of range of motion due to pain, fatigue, weakness or lack of endurance. There was tenderness and moderate pain of the lumbar spine with muscle spasm. The Veteran denied any incapacitating evidence of spine disease in the past 12 months. Later, the Veteran wrote that the examiner must have misunderstood him. The Veteran submitted a "disability questionnaire" from his private physician dated in April 2012. The physician reported that the Veteran was unable to do activities of daily life due to his pain and had 25 to 50 degrees of forward flexion with pain throughout the entire range of motion. The physician marked both "0" and "5" degrees of extension, both 10 and 15 for right lateral flexion, both 10 and 15 for left lateral flexion, and 15 for rotation, bilaterally. With the exception of flexion and extension, the Veteran's pain was noted to be generally present at the endpoint of range of motion. The physician did not indicate when pain began with extension. After repetition, his range of motion decreased, but this was not set forth in degrees. After repetitive use, there was noted to be less movement than normal, weakened movement, incoordination, pain on movement, instability, disturbance of locomotion, and interference with sitting , standing, or weight bearing. The Veteran was noted to have tenderness and muscle spasm around the spine. The private physician diagnosis was that of intervertebral disc syndrome and indicated that he had at least four but less than six weeks of incapacitating episodes in the last year. The Veteran always used a cane and occasionally used a walker. He was able to do "no work at all." In a May 2012 letter, the Veteran reported that, although his own doctor wrote that the he had four to six weeks of bed rest, "there were many times [he] stayed in bed because [he] could not function and [he] knew [he] could not see the doctor right away and [he] also knew he would tell me to do bed rest and [he] had had this problem long enough to know when [he] [had] to stay in bed. The Board notes that the Veteran's subjective feeling that he needed bed rest and his personal decision to stay in bed, without instruction from a physician, does not meet the regulatory definition of incapacitating episode. The Veteran was reexamined in January 2013. At that time, the Veteran reported that he had lumbar pain that radiated down the back of his right leg almost to his knee and down to the left buttock. He reported having pain on a constant daily basis, but no flare ups. The range of motion of the lumbar spine was that of 0 to 45 degrees of flexion with pain throughout the entire range of motion (report actually says "no objective evidence of painful motion beginning at 0 degrees," but this appears to be a typographical error), 0 to 15 degrees of extension with pain throughout the entire range of motion, 0 to 10 degrees of right and left lateral flexion with pain throughout the entire range of motion, right rotation ends at 15 degrees with pain at 15 degrees, and left rotation ended at 20 degrees with pain at 20 degrees. With three repetitions, there was no change in the above measurements. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. There was mild tenderness over the spine, but no paravertebral spasm. Muscle strength was normal. There was no evidence of intervertebral disc syndrome of the thoracolumbar spine. The Veteran did not use any assistive devices. The functional limitations were noted to be less movement than normal and pain on movement. The diagnosis was that of degenerative disk disease of the lumbar spine. It as likely as not prevented the Veteran from working because he was limited in how long he could stand or sit. The evidence shows that the Veteran does not meet the criteria for a rating in excess of 40 percent for the service-connected low back disability. There is no evidence of unfavorable ankylosis of the spine. The Veteran still had range of motion of his spine, and it was not shown to be functionally fixed in place. The Veteran does not assert that his spine is fixed in place, and the VA examinations showed that he had range of motion of his spine. Even his private physician documented that he was able to move his spine. Moreover, unfavorable ankylosis of the thoracolumbar spine is not documented in the Veteran's extensive treatment records, any of the VA examination reports, or even the disability benefits questionnaire filled out by the Veteran's private physician. Additionally, incapacitating episodes of intervertebral disc syndrome lasting six weeks or longer are not shown. To the extent that his private physician found that he suffered from intervertebral disc syndrome, his incapacitating episodes lasted less than six weeks in the last twelve months. The only documentation of physician-prescribed bed rest in the record is the indication from the Veteran's physician on the disability benefits questionnaire that the he had four but less than six weeks total incapacitating episodes. Earlier VA examinations did not document any incapacitating episodes. While the Veteran contends that the calculation of the length of incapacitating episodes should include the time he voluntarily stayed in bed because "he knew [the doctor] would tell me to do bed rest," an "incapacitating episode" is clearly defined by regulation as "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." It does not include time that a Veteran voluntarily was in bed without seeking medical treatment, regardless of what the doctor might have prescribed had he sought treatment. While the Veteran may have spent more than six weeks in bed, the evidence does not show that there are incapacitating episodes as identified by his physician. Rather, the physician indicated that at least four but less than six weeks of bed rest was prescribed. The criteria for a rating in excess of 40 percent based on the frequency of incapacitating episodes were not met. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the scheduler rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran's symptoms of back pain, reduced motion, altered gait, and muscle spasm are specifically contemplated in the rating criteria. The Veteran's neurologic and bladder complaints are already service connected and are separately rated. While the Veteran and his wife strenuously contend that the intensity of his pain precludes any type of employment, the Board notes that the Veteran was granted a TDIU rating in a prior rating decision based on his service-connected disabilities. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine does not apply in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER An increased rating in excess of 40 percent for the service-connected lumbar strain with lumbar disc disease is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs