Citation Nr: 0000601 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 92-21 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for a low back disorder, evaluated as 10 percent disabling from October 31, 1990 to October 23, 1998, and currently evaluated as 40 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from July 1958 to August 1973 and from September 1974 to August 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal of a March 1991 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). At that time, a 10 percent rating was assigned. The issue was remanded by the Board in June 1997. At that time, the Board was deemed to have jurisdiction over issues regarding the effective dates assigned for 20 percent ratings for bursitis of each shoulder. This jurisdiction was determined on the basis of a decision of the U.S. Court of Appeals for Veterans Claims (Court) in Holland v. Brown, 9 Vet. App. 324 (1996). However, subsequent to the Boards remand, the Court's decision was overturned in Grantham v. Brown, 114 F 3rd 1156 (1997). In April 1999, the RO furnished the veteran a statement of the case on the issues of entitlement to earlier effective dates for the bilateral shoulder disorders. It would be improper to remand these issues because the RO has completed its responsibility in the processing of these issues by sending the veteran a statement of the case. 38 U.S.C.A. 7105 (West 1991). If the veteran wishes these issues to be considered by the Board, he must file a substantive appeal. The Board does not have jurisdiction unless a timely substantive appeal is filed. It would be inappropriate for the Board to assume that the veteran will appeal, or that he will appeal all issues or that the appeals would be timely or adequate. 38 C.F.R. §§ 20.202, 20.203, 20.302 (1999). It would be completely inappropriate for the Board to speculate as to the facts or arguments he might present in support of his claim. It is also possible for the veteran to submit additional evidence. 38 C.F.R. § 20.1304 (1999). It would be inappropriate for the Board to interfere with the appeal process by addressing these issues at this time. Therefore, the issues of entitlement to earlier effective dates for 20 percent ratings for bursitis of the shoulders is not before the Board. Jurisdiction does indeed matter and it is not "harmless" when the VA during the claims adjudication process fails to consider threshold jurisdictional issues. Absent a decision, a notice of disagreement, a statement of the case and a substantive appeal, the Board does not have jurisdiction of the issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). An application that is not in accord with the statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). Furthermore, this Board Member cannot have jurisdiction of this issue. 38 C.F.R. § 19.13 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has noted that: Furthermore, 38 U.S.C.A. § 7105 (West 1991) establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other "agency of original jurisdiction" (AOJ) (see Machado v. Derwinski, 928 F.2d 389, 391 (Fed. Cir. 1991)) before a claimant may secure "appellate review" by the BVA. Subsection (a) of that section establishes the basic framework for the appellate process, as follows: Appellate review will be initiated by a notice of disagreement [(NOD)] and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Bernard v. Brown, 4 Vet. App. 384 (1994). The final step required for Board jurisdiction has not been satisfied. More recently, when another part of VA argued that an issue over which the Board did not have jurisdiction should be remanded, the Court again established that jurisdiction counts. Specifically the Court could not remand a matter over which it has no jurisdiction. Hazan v. Gober, 10 Vet. App. 511 (1997). See also Ledford v. West, 136 F.3d 776 (1998); Black v. West, 11 Vet. App. 15 (1998); Shockley v. West, 11 Vet. App. 208 (1998). If the veteran wishes the Board to consider these issues, the veteran must file a timely and adequate substantive appeal. By rating decision dated in April 1999, the RO increased the evaluation for the veteran's low back disorder to 40 percent disabling, effective October 23, 1998. This matter continues to be before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to October 23, 1998, the veteran's low back disorder was manifested by limitation of forward flexion to 45 degrees and lateral flexion to 30 degrees, without significant pain, and was productive of no more than slight impairment. 2. On October 23, 1998, the veteran's low back disorder was noted to be productive of severe impairment, without pronounced intervertebral disc disease or ankylosis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a low back disorder, prior to October 23, 1998. have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Code 5292 (1999). 2. The criteria for a current rating in excess of 40 percent for a low back disorder have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Code 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is initially noted that this claim on appeal is well grounded; that is, it is not inherently implausible. It is also found that the facts relevant to this issue have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Service connection for chronic low back pain was initially granted by the RO in December 1973 rating decision. a 20 percent rating was assigned at that time. That rating was increased to 40 percent disabling in a May 1974 rating decision. The veteran's compensation was discontinued due to his return to active duty in September 1974 and rated 10 percent disabling after his discharge from service. That 10 percent rating was continued by the RO in the March 1991 decision that gave rise to this appeal. The rating was increased to 40 percent, effective on October 23, 1998. Under these circumstances, it must be determined whether a rating in excess of 10 percent is warranted prior to October 23, 1998, and in excess of 40 percent thereafter. An examination was conducted by VA in December 1990. At that time on examination of the lumbar spine, it was noted that there was a flattening of the lumbar curve. There appeared to be some arthritic change. The paraspinal muscles are tight. He was able to forward bend to 60 degrees and extend backward to 10 degrees. Lateral bending was to 30 degrees in each direction. X-ray studies showed some degenerative change at the L4-L5 level. The diagnosis was chronic low back pain with superimposed osteoarthritis. On additional evaluation, it was noted that the veteran had sustained a back fracture while on active duty after falling from a distance of 11 feet. Examination disclosed no sensory deficit. Strength was excellent, without focal fasciculation, tenderness or atrophy. Deep tendon reflexes were symmetrically active without abnormal response. The back presented normal curvature and no tenderness was noted on percussion. There was normal flexibility; however on straight leg raising, he did report pain in the hip as well as the hamstring on the left. The diagnosis was post- traumatic back pain related to compression fracture of L5, with some suggestion of L5 radiculopathy on the left, but without clear evidence of neurologic deficit. The examiner rendered an opinion that the veteran was minimally impaired in his back. An examination was conducted by VA in September 1991. At that time, he reported that the pain in his back had never truly subsided since the injury that occurred during service, but had recurred off and on over the years. When severe, the pain radiated into the right hip and right leg. He avoided doing any type of heavy work at home, but his job was primarily sedentary in nature. However, even if he sat for several hours, he needed to get up and walk about due to recurring pain. He did not experience paresthesia and had no change in bladder function. On examination of the low back, tendon reflexes were 2+ and symmetrical throughout. Plantar responses were flexor. Sensations were normal. Straight leg raising was negative to 90 degrees, bilaterally. Forward flexion was to 45 degrees. Lateral flexion to the left side produced right lower back pain. Pain was not produced on lateral flexion to the right side. There was some tenderness over the lumbar paraspinal muscles, particularly on the right. He could stand on his toes and heels. The impression was lower back pain associated with history of compression fracture of L5, but without evidence of radiculopathy on examination. VA outpatient treatment records, dated from September 1980 to April 1998 have been received and made a part of the claims file. They show that the veteran has been treated intermittently for thoracic spine and left shoulder pain, in February 1992 and October 1993, respectively, but do not show complaints or symptoms of low back pain. Treatment rendered in 1998 was for a disability unrelated to this appeal, sinusitis. An examination was conducted by VA on October 23, 1998. At that time, he complained of pain over his back on an almost daily basis. It was particularly noted on prolonged standing or walking, but also while sitting. The pain relieved itself somewhat when he moved about. Sometimes, the pain radiated down the left leg over the thigh area. There was no paresthesia, numbness, or weakness over the lower extremities. On examination, it was noted that he did not appear to be in distress and that he did not wear any brace or a TENS unit. He did not walk with any external support. He walked well, without a limp. General alignment of the back was good. He was tender and painful on palpation of the lumbar and lumbosacral area. There was no muscle spasm or muscle atrophy present over the back area. Forward flexion was to 30 degrees and associated with pain. Hyperextension was to 5 degrees and also associated with pain. Lateral bending was to 10 degrees, bilaterally, with pain. Straight leg raising caused pain on both sides. Reflexes were equal. Motor power and sensation in the lower extremities appeared normal. X-ray studies of the lumbosacral spine showed moderate degenerative disc and joint disease. It was noted that the findings had progressed since a previous study performed in December 1990. The diagnostic impression was that the veteran had chronic pain over his low back area, with restriction of motion in his back on flexion, extension and lateral bending, associated with back pain. There was no evidence of neurologic deficits. He was considered to have severe limitation of motion, with pain, that had been present for a long period of time. This rendered him unable to perform activities that required bending stooping, or lifting things over 15 to 20 pounds. The disability increased due to the further degenerative changes noted on the X-ray studies. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In evaluating the veteran's claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). For slight limitation of motion of the lumbar spine, a 10 percent rating is warranted. A 20 percent rating is warranted for moderate limitation of motion. A 40 percent rating is warranted for severe limitation of motion. 38 C.F.R. § 4.71a, Code 5292. Moderate intervertebral disc syndrome, with recurring attacks, is rated as 20 percent disabling. A 40 percent evaluation requires severe recurring attacks, with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a, Code 5293. Lumbosacral strain with characteristic pain on motion warrants a 10 percent rating. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position, warrants a 20 percent rating. Severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent rating. 38 C.F.R. § 4.71a, Code 5295. Ankylosis of the lumbar spine, at a favorable angle, warrants a 40 percent rating. Ankylosis at an unfavorable angle warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5289. Prior to October 1998, the veteran's low back disorder was manifested by limitation of forward flexion to 60 degrees in 1990 and 45 degrees in 1991. Limitation of lateral flexion was to 30 degrees, but was not accompanied by significant pain. Tests of straight leg raising were negative and there was no definite evidence of radiculopathy. The outpatient treatment records dated prior to October 1998 do not show significant disability associated with the veteran's low back disorder. It is noted that, in rating musculoskeletal disabilities, 38 C.F.R. § 4.40 (regarding functional loss) must be considered apart from and in addition to the appropriate Diagnostic Codes in the VA Schedule for Rating Disabilities. See DeLuca v. Brown, 8 Vet. App. 202, at 204- 206, 208 (1995). However, no significant pain is noted on the examinations in 1990 and 1991 and no disability from pain in the low back is shown in the outpatient treatment records that have been associated with the claims file. Under these circumstances, disability productive of more than slight impairment prior to October 23, 1998 has not been demonstrated and an increased rating is not warranted. On examination on October 23, 1998, severe disability of the lumbar spine was described. The veteran's evaluation was increased on this basis to the current 40 percent rating. For an increase to be warranted either pronounced intervertebral disc disease or ankylosis at an unfavorable angle must be demonstrated. The examination shows neither. Under these circumstances, a rating in excess of 40 percent is not warranted. ORDER A rating in excess of 10 percent prior to October 23, 1998 is denied. A current rating in excess of 40 percent is denied. C. P. RUSSELL Member, Board of Veterans' Appeals