Citation Nr: 0734903 Decision Date: 11/06/07 Archive Date: 11/19/07 DOCKET NO. 04-39 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for arthritis of the lumbosacral spine (back disability), currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from May 1982 to June 1984. This appeal comes before the Board of Veterans' Appeals (Board) a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which increased the veteran's rating for a back disability from 10 percent disabling to 20 percent disabling. FINDING OF FACT The veteran's back disability is manifested by forward flexion to 90 degrees, with pain at 40 degrees, and a combined thoracolumbar range of motion of greater than 120 degrees, but not ankylosis or neurological abnormalities which may be separately evaluated. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for a service-connected back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 4.14, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5237, 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Historically, the veteran was granted service connection for his back disability in April 1985. His rating was increased to 20 percent disabling in December 2003, and the veteran contends he is entitled to a higher rating. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in November 2003 that fully addressed all four notice elements and was sent prior to the initial decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence not in the possession of the Federal government. He was essentially asked to submit any evidence he had that supported his claim. The veteran is challenging an increased rating assigned in December 2003. As 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, VA's duty to notify in this case has been satisfied. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the veteran. The Federal Circuit stated that requiring an veteran to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any notice error(s) did not affect the essential fairness of the adjudication because the veteran stated in November 2003 that there was no additional evidence. See generally Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.2007), see Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA 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 veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA medical records and service medical records. The veteran was afforded VA medical examinations in November 2003 and March 2005. Significantly, neither the veteran nor his or her 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 veteran is required to fulfill VA's duty to assist the veteran 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). The record establishes the veteran was afforded a meaningful opportunity to participate in the adjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All requirements of the duty to notify the veteran and the duty to assist the veteran are met. Rating for Back Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the veteran's service-connected disabilities adversely affect his ability to function under the ordinary conditions of daily life, and the assigned ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The veteran's service-connected lumbosacral strain is evaluated under DCs 5235 to 5243 based on loss of range of motion, or objective indicators, unless the disability is evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine; a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or, where the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In this case, in March 2005, the veteran's forward flexion was measured to 90 degrees, with pain at 40 degrees. Extension was measured to 30 degrees, with pain at 10 degrees. Left and right lateral flexion were both measured to 30 degrees, with pain at 10 degrees. Left and right lateral rotation were measured to 10 degrees with pain, and then to 30 degrees with pain. The veteran has a combined thoracolumbar range of motion of 240 degrees with pain. The examiner did not test repetitive motion as it was too painful for the veteran. In November 2003, the veteran's forward flexion was measured to 60 degrees with pain between 40 degrees and 60 degrees. Extension was measured to 20 degrees. Left and right lateral flexion were both measured to 15 degrees. Left and right lateral rotation were measured to 20 degrees with pain. The veteran had end range pain with all of these movements. The veteran had a combined thoracolumbar range of motion of 150. The preponderance of the evidence shows that the veteran has a combined thoracolumbar range of motion above 120 degrees. The above findings do not satisfy the criteria under the General Formula for Diseases and Injuries of the Spine for a 40 percent evaluation. Moreover, while the veteran reported at the November 2003 VA examination that his back pain had worsened, the objective evidence does not demonstrate additional limitation of function (beyond the range of motion for 20 percent rating due to pain) from which to conclude that the veteran's disability picture is analogous to the 40 percent rating per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). There was no finding that the veteran has ankylosis, either favorable or unfavorable, so the 100 percent evaluation available for unfavorable ankylosis of the entire spine and the 50 percent evaluation available for unfavorable ankylosis of the entire thoracolumbar spine are not applicable. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The veteran is not entitled to a rating for intervertebral disc syndrome, as he has not been assigned any such diagnosis. The rating formula specifies that any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1) (2007). VA examinations in November 2003 and March 2005 found no objective evidence of neurologic abnormalities. Sensory examination, straight leg raising, muscle tone, motor strength, and deep tendon reflexes were all normal. He had no bladder or bowel problems. Although the veteran complained at the March 2005 examination about some numbness and radiating pain, the examiner did not attribute this to the veteran's back disability. The preponderance of the evidence is against the veteran's claim for an increased rating. Because the evidence is not in equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable to warrant a more favorable result. Therefore, the claim for a rating in excess of 20 percent cannot be granted. ORDER The claim for an increased rating for a back disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs