Citation Nr: 0320144 Decision Date: 08/14/03 Archive Date: 08/25/03 DOCKET NO. 00-19 221 ) DATE ) ) On certification from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the cervical spine. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the low back. 3. Entitlement to an initial compensable evaluation for degenerative changes of the left elbow. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. M. Panarella, Counsel INTRODUCTION The veteran served on active duty from July 1979 to March 1999. This matter comes before the Board of Veterans Appeals (Board) on appeal from the April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran's degenerative joint disease of the cervical spine is productive of no more than slight limitation of motion. 3. The veteran's degenerative joint disease of the low back is productive of no more than slight limitation of motion. 4. The veteran's degenerative changes of the left elbow are manifested by subjective complaints of pain, with no limitation of motion, motor or neurological deficit, or other objective finding of abnormality. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the cervical spine have not been met. 38 U.S.C.A. § 1155, 5103A (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.71a, Diagnostic Code 5290 (2002). 2. The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the low back have not been met. 38 U.S.C.A. § 1155, 5103A (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.71a, Diagnostic Code 5292 (2002). 3. The criteria for a compensable evaluation for degenerative changes of the left elbow have not been met. 38 U.S.C.A. § 1155, 5103A (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.71a, Diagnostic Code 5213 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits, and redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits. See 38 U.S.C. §§ 5103, 5103A (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.159 (2002). In this case, VA's duties have been fulfilled to the extent possible. First, VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that information or evidence. See 38 U.S.C. § 5103A (West Supp. 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, the veteran was informed of the evidence needed to substantiate his claims by means of the April 1999 rating decision, the June 2000 Statement of the Case, and the May 2003 Supplemental Statement of the Case. In the rating decision, the veteran was informed of the basis for the denial of his claims and of the type of evidence that he needed to submit to substantiate his claims. In the Statement of the Case, the RO notified the veteran of all regulations pertinent to his claims, informed him of the reasons for the denials, and provided him with additional opportunity to present evidence and argument in support of his claims. In addition, the RO specifically advised the veteran of the provisions of the VCAA in letters dated March 2001 and November 2002. In the Supplemental Statement of the Case, the RO also informed the veteran of the revised rating criteria for intervertebral disc syndrome and applied the revised criteria to his claim. Therefore, the Board finds that the rating decision, Statement of the Case, Supplemental Statement of the Case, and related letters provided to the veteran satisfy the notice requirements of 38 U.S.C.A. § 5103 of the new statute. VA must also make reasonable efforts to assist the veteran in 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 (West Supp. 2002). Here, the RO afforded the veteran several VA examinations and considered statements from an Army physician and a co-worker. The veteran has not identified any private treatment of his service-connected disabilities and he did not request a personal hearing. Accordingly, the Board finds that no further action is necessary to comply with the duty to assist provisions of the VCAA. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civilian occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate Diagnostic Codes identify various disabilities. When the assignment of an initial rating award is at issue, VA must consider all evidence of the veteran's disability as is necessary to evaluate the severity from the effective date of service connection through the present. It is not only the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses is to be avoided. Disabilities from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movement in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. With any form of arthritis, it is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59. I. Cervical Spine The RO granted service connection for degenerative joint disease of the cervical spine in the April 1999 rating decision and assigned a 10 percent disability evaluation effective from April 1999. The veteran disagreed with this initial evaluation. At a December 1998 VA examination, the veteran reported neck pain. Upon examination, there was decreased range of strength and tenderness to palpation. Range of motion was measured as 9 degrees of flexion, 11 degrees of extension, 8 degrees of lateral flexion, and 14 degrees of rotation. Neurological evaluation was negative. The x-ray report found 50 percent narrowing of the C5-C6 disc space with associated subchondral sclerosis to the endplates and mild anterior posterior spurring. The veteran was assessed with moderately severe discodegenerative changes at C5-C6. At a May 2000 VA examination, the veteran reported intermittent stiffness with occasional numbness of the cervical spine. He used no medication and performed range of motion exercises to alleviate the stiffness. He occasionally had a sudden pain of the neck when he turned it quickly. Objectively, the cervical spine exhibited a full and painless range of motion. Musculature, shoulder shrug, and deep tendon reflexes were normal. The x-ray report showed narrowing of the C5-C6 disc joint, unchanged from previous study. The veteran was diagnosed with degenerative disc disease C5-C6, otherwise normal examination. In February 2003, the veteran underwent an orthopedic examination in Germany. The physician reviewed the case history, interviewed the veteran, and performed physical and radiological examinations. The veteran complained of increasing neck pain since 1996. He had undergone physiotherapy for the neck pain and used prescription medication. These treatments had not alleviated the pain. The veteran had recurring neck pain that radiated into the left arm every 2 to 3 days. Evaluation of the cervical spine found end-range pain in rotation and lateral inclination. There was no distraction or compression pain. Occipital groove and paravertebral musculature were not painful to pressure. Shoulders and shoulder girdle musculature were symmetrical. Sensory and neurological evaluations of the upper extremities were normal. The radiology report showed extensor malposition, ponticulus posterior at C1, spondylophyte formation at C5-C6 and C6-C7, with obvious reduction in height and sclerosis of vertebrae endplates, and obvious retrospondylosis, especially at C5-C6. The MRI revealed absolute degenerative spinal stenosis at C5-C6 on the basis of very advanced disc degeneration with spondylosis deformans and retrospondylophyte changes. Severe osseous neuroforamen stenosis was present on both sides at C5-C6, and slight disc degeneration was present at C6-C7. The veteran was diagnosed with chronic cervical spine syndrome with absolute, degenerative spinal stenosis at C5-C6 with radicular symptoms C5-C6 left. The veteran's degenerative joint disease of the cervical spine has been assigned a 10 percent schedular evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). Under Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis. Degenerative arthritis, in turn, is rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the cervical spine is evaluated under Diagnostic Code 5290. Slight limitation of motion of the cervical spine is assigned a 10 percent evaluation. Moderate limitation of motion of the cervical spine warrants assignment of a 20 percent evaluation, and a 30 percent evaluation is contemplated for severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5290. Applying the above criteria to the facts of this case, the Board finds that a preponderance of the evidence is against an evaluation in excess of 10 percent for degenerative joint disease of the cervical spine. The medical evidence of record shows an essentially full range of motion of the neck, limited slightly by pain. The Board has also considered the application of alternative Diagnostic Codes. However, the veteran's cervical spine disability is not characterized by vertebral fracture or ankylosis. See Diagnostic Codes 5285, 5287. In addition, considering the veteran's disability as intervertebral disc syndrome pursuant to Diagnostic Code 5293 would not yield a higher rating. Under this Diagnostic Code, intervertebral disc syndrome is rated at 10 percent when it is mild, and 20 percent when it is moderate with recurring attacks. For an increased evaluation to 40 percent, it must be severe, with recurring attacks, with intermittent relief. During the course of this appeal, regulations amending Diagnostic Code 5293 became effective on September 23, 2002. See 67 Fed. Reg. 54,345-49 (August 22, 2000). Under the amended schedular criteria, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months, a 20 evaluation is warranted. The Board finds that the application of Diagnostic Code 5293 would not afford the veteran a higher evaluation. The examinations of record contain minimal findings of neurological symptomatology, and there is no evidence that the veteran's cervical spine disability results in incapacitating episodes. Finally, the Board has considered functional loss caused by pain, weakened movement, and flare- ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. However, the Board finds that the 10 percent disability evaluation adequately compensates for the veteran's degree of functional impairment and that the currently assigned evaluation most closely approximates the veteran's overall disability picture. As the Board can identify no basis to assign a higher evaluation, the appeal is denied. II. Low Back The RO granted service connection for degenerative joint disease of the low back in the April 1999 rating decision and assigned a 10 percent disability evaluation effective from April 1999. The veteran disagreed with this initial evaluation. At a December 1998 VA examination, the veteran reported chronic low back pain, with the most recent exacerbation four months ago. During a flare-up, he needed to sit in a chair or lie on the floor, and he could not easily get out of bed. Objectively, tenderness was present in the mid lower back area. There was decreased range of motion of 35 degrees of flexion, 15 degrees of extension, 15 degrees of lateral flexion, and 17 degrees of rotation. The neurological evaluation was negative. The x-ray report found a tiny amount of narrowing of the L5-S1 disc space with several millimeters of retrolisthesis. The veteran was assessed with retrolisthesis of L5 on S1 with associated minimal posterior disc space narrowing. At a May 2000 VA examination, the veteran reported low back pain when he did sit-ups, in the morning, and after sitting for a prolonged time. He used no medication and flare-ups were described as occasional and of brief duration. The veteran walked and stretched his back to relieve the pain. Upon examination, there was no evidence of painful or limited motion, spasm, weakness, tenderness, postural abnormality, or fixed deformity. Muscles and reflexes were normal. The x- ray report showed minimal retrolisthesis of L5 on S1, unchanged since previous study. The veteran was assessed with lumbosacral spine on and off strain; normal examination. At the February 2003 VA examination, the veteran reported recurring lumbar spine pain characterized by stiffness and restricted movement. The pain did not radiate and there was no numbness in the lower extremities. The lumbar spine pain occurred chiefly with strain. The veteran had undergone physiotherapy for the neck pain and used prescription medication. These treatments had not alleviated the pain. Upon examination, the veteran used no orthopedic aids and gait was normal. He was able to squat, as well as heel and toe walk. He exhibited some pain when arising from the squat, but without insufficiency signs or support reaction. He could bend forward to within 40 centimeters of the floor before he felt pain. Evaluation of the lumbar spine found no significant paralumbar muscle hardening, no local pain with percussion, and no interspinal or paravertebral pressure pain. Range of motion was measured as 30 degrees of lateral inclination, and 40 degrees of rotation, with reclination pain at 20 degrees and inclination pain at 50 degrees. The veteran could sit on the floor with legs stretched forward and lay prone on the examination table without pain. Neurological evaluation of the lower extremities was negative. The radiology report of the lumbar spine found physiological lumbar spine lordosis with 5 segment lumbar spine structure, initial spondylosis on the upper edge of lumbar vertebrae 3 and 4, and height reduction at L5-S1 on sacrum arcuatum. The MRI of the lumbar spine identified signal reduction and bulges into the median level of L5-S1, protruding against the anterior lateral ligament. The veteran was diagnosed with chronic recurring lumbar spine syndrome with incipient disc degeneration at L5- S1. The veteran's degenerative joint disease of the low back has been assigned a 10 percent schedular evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). As explained above, degenerative arthritis is rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the lumbar spine is evaluated under Diagnostic Code 5292. Slight limitation of motion of the lumbar spine is assigned a 10 percent evaluation. Moderate limitation of motion of the lumbar spine warrants assignment of a 20 percent evaluation, and a 40 percent evaluation is contemplated for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Applying the above criteria to the facts of this case, the Board finds that a preponderance of the evidence is against an evaluation in excess of 10 percent for degenerative joint disease of the lumbar spine. The medical evidence of record shows no more than a slight limitation of motion of the lumbar spine. The Board has also considered the application of alternative Diagnostic Codes. However, the veteran's lumbar spine disability is not characterized by vertebral fracture or ankylosis. See Diagnostic Codes 5285, 52897. In addition, evaluation of the veteran's lumbar spine disability as intervertebral disc syndrome pursuant to Diagnostic Code 5293 would afford the veteran no higher evaluation. In this regard, the examinations are essentially negative for any neurological symptomatology, and there is no evidence that the lumbar spine disability results in incapacitating episodes. Finally, the Board has considered functional loss caused by pain, weakened movement, and flare- ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. However, the Board finds that the 10 percent disability evaluation adequately compensates for the veteran's degree of functional impairment and that the currently assigned evaluation most closely approximates the veteran's overall disability picture. As the Board can identify no basis to assign a higher evaluation, the appeal is denied. III. Left Elbow The RO granted service connection for degenerative changes of the left elbow in the April 1999 rating decision and assigned a noncompensable disability evaluation effective from April 1999. The veteran disagreed with this initial evaluation. At a December 1998 VA examination, the veteran reported that he was left hand dominant and that he had a bone spur of the left elbow. Objectively, a bony deformity was present. Range of motion was documented as flexion to 145 degrees, supination to 85 degrees, and pronation to 80 degrees. There was no sign of circulatory disturbance and the neurological evaluation was negative. The x-ray report found a prominent hypertrophic spur of the ulnar olecranon, extensor cortex, and a tiny amount of spurring about the articular margins of the olecranon fossa and along the coranoid process. The veteran was assessed with mild degenerative changes of the left elbow. At a May 2000 VA examination, the veteran denied any problems with his left elbow. Rather, he stated that he had injured the left forearm and had developed a dent on the proximal third of the left cubital bone. The veteran also complained of numbness of the first three digits of the left hand. The numbness occurred with prolonged typing, driving, or resting on the cubital bone. Flare-ups caused mild to moderate numbness and were brief in duration. The hand became tired during flare-ups but had no motor problems. The veteran used no medication or medical treatment for his left arm. He used a pillow to rest the arm, and performed exercises to relieve the hand. Objectively, the veteran exhibited a full and painless range of motion of the left elbow. No tenderness, deformity, or swelling of the left elbow was present. The proximal third of the left cubital bone had some irregularities, but no pain, tenderness, or dysesthesia. Motor function of the left forearm, wrist, and hand was normal. Range of motion was also normal for the left fingers, hand, and wrist. Reflexes of the upper extremity were intact and there was no evidence of incoordination. The x-ray report of the left forearm showed an old healed fracture in the proximal shaft of the ulna as indicated by a localized cortical thickening over the dorsal aspect. A small spur of the olecranon in the elbow was present, unchanged since previous study. The EMG and nerve conduction study showed no abnormal electrical signs of the left upper extremity. The veteran was diagnosed with residual irregularities (old healed fracture) on the proximal third of the left ulnar bone; off and on numbness of the first three digits of the left hand, not related to the ulnar side of the injury, EMG normal; and normal examination of the left elbow. The associated EMG and nerve conduction study included a physical examination that found good motor strength, no muscle wasting, negative Tinel's and Phalen's signs, and decreased pinprick sensation at the left index finger. An April 2001 letter from an Army physician stated that the veteran had chronic pain of his left forearm. A March 2001 letter from the veteran's coworker stated that he had observed the veteran taking breaks from typing in order to rest and massage his left forearm. At the February 2003 orthopedic examination, the veteran reported increasing pain of the left forearm since 1996. The pain occurred at rest or with exertion and radiated to the wrist. The pain occurred in episodes and was not constant. The left arm also tired quickly and felt numb. Writing and typing led to tiredness and numbness. Upon examination, the left elbow joint had no pain with pressure, and ligaments were stable on both sides. Hoffmann-Tinel sign was positive over the ulnaris insertion. A palpable bone edge was present in the proximal third on the outer edge of the ulnar. Both elbows exhibited the same range of motion, recorded as 160 degrees of flexion, 0 degrees of extension, and 90 degrees of pronation and supination. Examination of the left shoulder, wrist, hand, and fingers was negative. The circumference of the upper extremities was equal, and neurological evaluation of the upper extremities found equal reflexes and no sensomotor deficit. A sonogram of the elbow joint revealed no abnormality, including no capsule swelling, joint effusion, or synovitic irritation. The veteran was diagnosed with condition after contusion and compression of proximal ulnar with palpable bone edge on lateral edge of proximal ulnar; however, without motor or neurological function deficit. The veteran's degenerative changes of the left elbow have been assigned a noncompensable schedular evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2002). Under this Diagnostic Code, for impairment of supination and pronation, limitation of supination to 30 degrees or less is rated at 10 percent for either the major or the major extremity. For the major extremity, a 20 percent evaluation is assigned when the hand is fixed near the middle of the arc or moderate pronation, or motion is lost beyond last quarter of arc, the hand does not approach full pronation. A 30 percent evaluation is assigned when motion is lost beyond middle of arc or the hand is fixed in full pronation. 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2002). Applying the above criteria to the facts of this case, the Board finds that the preponderance of the evidence is against a compensable evaluation. The veteran has been found to have a full range of motion of the left upper extremity. Consequently, the application of alternative Diagnostic Codes based upon limitation of motion would not afford the veteran a higher evaluation. See Diagnostic Codes 5205, 5206, 5207, 5208. The Board has considered functional loss caused by pain, weakened movement, and flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. However, the Board observes that no motor or neurological disability of the left upper extremity has been identified upon examination. In addition, no objective medical evidence has substantiated the veteran's complaints of pain. Finally, the numbness of the fingers has not been attributed to the veteran's service-connected disability. In the absence of any medical evidence of current symptomatology, a compensable evaluation must be denied. The potential application of various provisions of Title 38 of the Code of Federal Regulations (2002) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2002). The Board, as did the RO, finds that the evidence of record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. In this regard, the Board finds that there has been no showing by the veteran that his service-connected disabilities have resulted in marked interference with employment or necessitated frequent periods of hospitalization. The veteran has alleged that his service- connected disabilities require him to take breaks while working. He has submitted no documentation that these disabilities impair his ability to work full-time or adversely affect his performance. Therefore, the Board finds that the veteran's level of disability is contemplated under the standard rating criteria. The criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2002) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for degenerative joint disease of the cervical spine is denied. An evaluation in excess of 10 percent for degenerative joint disease of the low back is denied. A compensable evaluation for degenerative changes of the left elbow is denied. MICHAEL E. KILCOYNE Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.