Citation Nr: 1414797 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 10-45 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable disability rating prior to September 23, 2011, for status post-surgery and degenerative changes at L4-5, with scar. 2. Entitlement to a disability rating in excess of 20 percent from September 23, 2011, for status post-surgery and degenerative changes at L4-5, with scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink INTRODUCTION The Veteran served on active duty from March 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A subsequent November 2011 rating decision increased the original noncompensable rating to 20 percent effective September 23, 2011. The issue of entitlement to a disability rating in excess of 20 percent beginning September 23, 2011, for status post-surgery and degenerative changes at L4-5, with scar, is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Prior to September 23, 2011, the Veteran's low back disability manifested by pain, with flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 35 degrees, left lateral rotation to 48 degrees, right lateral flexion to 34 degrees, and right lateral rotation to 42 degrees, without incapacitating episodes, tenderness, or objective evidence of neurological impairment. CONCLUSION OF LAW The criteria for an initial 10 percent disability rating for status post-surgery and degenerative changes at L4-5, with scar, prior to September 23, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5242 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The Veteran's claim of entitlement to increased evaluations for status post-surgery and degenerative changes at L4-5 with scar arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the December 2009 and September 2011 examiners took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). The Veteran's status post-surgery and degenerative changes at L4-5, with scar, is rated under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (General Rating Formula for Diseases and Injuries of the Spine). The Veteran seeks an initial compensable disability rating for his lumbar spine disability prior to September 23, 2011. Consideration of any associated radicular pain in the lower extremities is inherent in the evaluation of the claim on appeal for an increased rating for degenerative changes of the lumbar spine. Id. at Note (1). Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the lumbar spine disability. A 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, the evidence shows muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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. Id. A 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Id. at Note 2. The medical evidence during this period consists of a VA examination in 2009. At that time he stated that he had no current care for his back. The record supports that statement by the lack of treatment reports during the period on appeal. The Veteran reported stiffness, weakness, spasms, and constant moderate pain in the low back. The Veteran experienced no incapacitating episodes due to his service-connected low back disorder. The Veteran's spine exhibited no abnormal curvatures. Physical examination revealed normal muscle examination, normal detailed motor examination, normal detailed sensory examination, and normal detailed reflex examination. The Veteran's motion was measured as flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 35 degrees, left lateral rotation to 48 degrees, right lateral flexion to 34 degrees, and right lateral rotation to 42 degrees. The examiner noted no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. The examiner found no functional impairments. The Veteran testified at a hearing before the Board in January 2012. He asserted that he had pain in the low back at the time of service-connection. The Veteran's pain was not constant, but flared-up when he was sitting. He also testified that he had radiating pain since service. A compensable disability for the Veteran's service-connected low back disorder prior to September 23, 2011, under the provisions of Diagnostic Code 5242 have not been met. The Veteran's back disability was manifested with forward flexion of the spine greater than 85 degrees, combined range of motion of the spine greater than 235 degrees, and without muscle spasm, guarding, or localized tenderness, or incapacitating episodes. Although the Veteran experiences limitation of motion, limitation of motion due to pain has not caused the required symptoms to meet the criteria for a higher disability rating. 38 C.F.R. §§ 4.40, 4.45, 4.45, 4.71a (2013). The VA examiner specifically noted no change in range of motion findings due to pain or repetition. Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is rated at 10 percent disabling, with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitation exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Accordingly, as limitation of motion has been shown, with x-ray evidence of arthritis, a 10 percent evaluation under the provisions of Diagnostic Code 5003 is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Additionally, although the Veteran reported radiating pain, the objective medical evidence found normal neurological testing in December 2009. The Veteran's motor, sensory, and reflex examinations were normal. Therefore, a separate disability rating for neurological manifestations of his back disability, prior to September 23, 2011 is not warranted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Moreover, a separate compensable initial evaluation under Diagnostic Code 5243 is not warranted as intervertebral disc syndrome has not been shown, nor has bedrest been prescribed for incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The Board must also consider entitlement to a separate disability rating for scar secondary to the status post-surgery and degenerative changes at L4-5. A separate disability rating for scar is warranted when the scar is deep, nonlinear, and at least 6 square inches, be superficial, nonlinear, and at least 144 square inches, or be unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804 (2013). The December 2009 examiner noted an 11 centimeters by 1 millimeters wide, mildly hypopigmented, smooth surfaced, non-tender to palpation, superficial post-surgical scar mid-line to the lumbar spine. The September 2011 examiner noted the scar was not painful, unstable, or greater than 6 square inches. Based on the evidence of record, the Board finds that a separate disability rating due to scar is not warranted. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Prior to September 2011, the Board finds that the Veteran's service-connected low back disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. Prior to September 23, 2011, the Veteran's service-connected low back disability was evaluated as a disease of the spine, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. Prior to September 23, 2011, the low back disability was manifested by pain, flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 35 degrees, left lateral rotation to 48 degrees, right lateral flexion to 34 degrees, and right lateral rotation to 42 degrees, without incapacitating episodes, tenderness, or neurological impairment. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating for the initial period on appeal. Evaluations in excess of the assigned rating are provided for certain manifestations of a disability of the spine, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 10 percent rating reasonably describe the Veteran's low back disability level and symptomatology prior to September 23, 2011. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). After review of the evidence of record, there is no evidence of record that would warrant a rating lesser than or in excess of 10 percent prior to September 23, 2011 for the Veteran's service-connected low back disability. 38 U.S.C.A. 5110 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected low back disability, the evidence shows no distinct periods of time since service connection became effective prior to September 23, 2011, during which the Veteran's low back disability has varied to such an extent that a rating greater or less than the assigned rating would be warranted. Cf. 38 C.F.R. § 3.344 (2013) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for an initial compensable evaluation prior to September 23, 2011, for status post-surgery and degenerative changes at L4-5, with scar, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial 10 percent disability rating prior to September 23, 2011, for status post-surgery and degenerative changes at L4-5, with scar, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND During the January 2012 hearing before the Board, the Veteran stated that he had erectile dysfunction and radiculopathy due to his service-connected low back disability. Moreover, the Veteran testified that the orthopedic manifestations of his service-connected low back disorder had increased in severity since the September 2011 VA examination. Moreover, the Board finds that the VA examination in September 2011 is inadequate. The VA examiner in September 2011 reported no radicular pain or other sign or symptom of radiculopathy; however, the examiner noted that the Veteran's radiculopathy was mild, bilaterally. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine the current severity of the Veteran's service-connected status post-surgery and degenerative changes at the L4-L5 levels, with scar, to include any neurological residuals, specifically, erectile dysfunction and radiculopathy. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner must conduct full range of motion studies on the service-connected low back disorder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected low back disorder. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected low back disorder, including any radiating pain to the lower extremities, erectile dysfunction, and/or bladder or bowel impairment. Any neurologic abnormalities associated with the Veteran's service-connected low back disorder must be reported. If necessary to evaluate the complaints, nerve conduction studies and/or electromyography studies must be conducted. The specific nerve(s) involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs