Citation Nr: 0707404	
Decision Date: 03/12/07    Archive Date: 03/20/07

DOCKET NO.  03-29 625	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
prominent hypertrophic degenerative spondylosis of the 
cervical spine with spinal stenosis at C3-4 and 
C6-7, from July 18, 2001 to October 3, 2006.  

2.  Entitlement to an evaluation in excess of 20 percent for 
prominent hypertrophic degenerative spondylosis of the 
cervical spine with spinal stenosis at C3-4 and 
C6-7, from October 4, 2006.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The veteran had active service from July 1984 to July 1999.  

This matter initially came before the Board of Veterans' 
Appeals (Board) on appeal from an August 2001 decision by the 
RO which granted service connection for the cervical spine 
disability and assigned a 10 percent evaluation, effective 
from July 18, 2001, the date of receipt of claim.  38 C.F.R. 
§ 3.400(b)(2) (2006).  The veteran perfected an appeal as to 
the 10 percent evaluation assigned.  Thereafter, the Board 
remanded the appeal for additional development in May 2006.  
By rating action in November 2006, the veteran was assigned 
an increased rating to 20 percent, effective from October 4, 
2006, the date of a VA examination report showing increased 
disability of the cervical spine.  38 C.F.R. § 3.400(o)(2) 
(2006).  


FINDINGS OF FACT

1.  All evidence necessary for adjudication of this claim 
have been obtained by VA.  

2.  Since service connection was granted, the cervical spine 
disability is manifested by subjective complaints of pain and 
occasional paresthesias in the left hand, and moderate 
limitation of motion; there is no objective evidence of 
radiculopathy or other neurological impairment, or any 
functional loss of use.  


CONCLUSIONS OF LAW

1.  The criteria for an increased evaluation to 20 percent, 
and no higher, for the cervical spine disability from July 
18, 2001 to October 3, 2006, have been met.  38 U.S.C.A. 
§§ 1155, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & 
Supp. 2005); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 
4.59, 4.71a, Part 4, Diagnostic Codes 5290 (prior to 9/26/03) 
and 5243 (from 9/26/03).  

2.  The criteria for an evaluation in excess of 20 percent 
for the cervical spine disability from October 4, 2006, are 
not met.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5106, 
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.3, 4.7, 
4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5293-
5243 (prior to 9/26/03) and 5243 (from 9/26/03).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the veteran's claim, 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 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.326 (2006).  

In this case, a letter dated in May 2006 fully satisfied the 
duty to notify provisions of VCAA, including the degree of 
disability and the effective date of the disability.  
38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  Although the letter was 
not sent prior to initial adjudication of the veteran's 
claim, this was not prejudicial to him, since he was 
subsequently provided adequate notice, the claim was 
readjudicated, and a supplemental statement of the case was 
promulgated in November 2006.  The veteran was notified of 
the evidence that was needed to substantiate his claim and 
that VA would assist him in obtaining evidence, but that it 
was ultimately his responsibility to provide VA with any 
evidence pertaining to his claim, including any evidence in 
his possession.  See Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II).  

The veteran's service medical records and all VA medical 
records identified by him have been obtained and associated 
with the claims file.  The veteran was afforded a VA 
examination during the pendency of this appeal, and was 
scheduled for a hearing before a member of the Board at the 
RO in May 2005, but failed to report, and did not request to 
have the hearing rescheduled.  There is no indication in the 
record that any additional evidence relevant to the issue to 
be decided herein is available and not part of the claims 
file.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In short, the veteran has been made aware of the information 
and evidence necessary to substantiate his claim and is 
familiar with the law and regulations pertaining to the 
claim.  See Desbrow v. Principi, 17 Vet. App. 207 (2004); 
Valiao v. Principi, 17 Vet. App. 229, 232 (2003).  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, 19 Vet. App. 
103 (2005), rev'd on other grounds, Mayfield, 444 F.3d 1328 
(Fed. Cir. 2006).  

Law and Regulations

The issues currently on appeal arise from an original claim 
for compensation benefits.  As held in AB v. Brown, 6 Vet. 
App. 35, 38, (1993), where the claim arises from an original 
rating, the claimant will generally be presumed to be seeking 
the maximum benefit allowed by law and regulation.  See also 
Fenderson v. West, 12 Vet. App. 119 (1999), which held that 
at the time of an initial rating, separate [staged] ratings 
may be assigned for separate periods of time based on the 
facts found.  

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.  
The percentage ratings in VA's Schedule for Rating 
Disabilities (Schedule) represent as far as can practicably 
be determined the average impairment in earning capacity 
resulting from such disabilities and their residual 
conditions in civil occupations.  38 C.F.R. § 4.1 (2006).  

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in the parts of the 
system, to perform the normal working movements of the body 
with normal excursion, strength, speed, coordination, and 
endurance. It is essential that the examination on which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all these elements.  
The functional loss may be due to absence of part, or all, of 
the necessary bones, joints and muscles, or associated 
structures, or to deformity, adhesions, defective enervation, 
or other pathology, or it may be due to pain, supported by 
adequate pathology and evidenced by visible behavior of the 
claimant undertaking the motion.  Weakness is as important as 
limitation of motion, and a part which becomes painful on use 
must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 
4.40, 4.45 (2006).  

The United States Court of Appeals for Veterans Claims 
(Court) has held that the RO must analyze the evidence of 
pain, weakened movement, excess fatigability, or 
incoordination and determine the level of associated 
functional loss in light of 38 C.F.R. § 4.40, which requires 
the VA to regard as "seriously disabled" any part of the 
musculoskeletal system that becomes painful on use.  DeLuca 
v. Brown, 8 Vet. App. 202 (1995).  The provisions of 
38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid 
consideration of a higher rating based on greater limitation 
of motion due to pain on use, including during flare-ups.  
The Board notes that the guidance provided by the Court in 
DeLuca must be followed in adjudicating claims where a rating 
under the diagnostic codes governing limitation of motion 
should be considered.  

Initially, the Board notes that during the course of the 
veteran's appeal, the regulations pertaining to rating 
disabilities of the spine were amended on two occasions.  The 
Board is required to consider the claim in light of both the 
former and revised schedular rating criteria to determine 
whether an increased evaluation for the veteran's spine 
disability is warranted.  VA's Office of General Counsel has 
determined that the amended rating criteria, if favorable to 
the claim, can be applied only for periods from and after the 
effective date of the regulatory change.  However, the 
veteran does get the benefit of having both the old 
regulation and the new regulation considered for the period 
after the change was made.  See VAOPGCPREC 3-00.  That 
guidance is consistent with longstanding statutory law, to 
the effect that an increase in benefits cannot be awarded 
earlier than the effective date of the change in law pursuant 
to which the award is made.  See 38 U.S.C.A. § 5110(g) (West 
2002).  

In general, where the law or regulation changes after a claim 
has been filed or reopened but before the administrative or 
judicial process has been concluded, VA must consider both 
versions and apply the one more favorable to the veteran.  
VAOPGCPREC 7-2003.  The RO considered the old and the revised 
regulations and determined that revised regulations were more 
advantageous to the veteran.  

Prior to September 26, 2003, under Diagnostic Code (DC) 5293 
(intervertebral disc syndrome), a 60 percent evaluation was 
assigned for pronounced, persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or other neurological 
findings appropriate to site of diseased disc with little 
intermittent relief.  A 40 percent evaluation was assigned 
for severe, recurring attacks with intermittent relief.  A 20 
percent rating was assigned for moderate symptoms with 
recurring attacks.  A 10 percent evaluation was assigned for 
mild symptoms.  38 C.F.R. § 4.71a, DC 5293 (effective prior 
to September 23, 2002).  

Under the old regulations for limitation of motion of the 
cervical spine (DC 5290), a 10 percent evaluation was 
assigned for slight limitation of motion; 20 percent for 
moderate limitation of motion, and 30 percent for severe 
limitation of motion.  38 C.F.R. § 4.71a, DC 5290 (effective 
prior to September 26, 2003).  

The first amendment to the Rating Schedule governing the 
rating of spinal disabilities pertained to the evaluation of 
intervertebral disc syndrome.  67 Fed. Reg. 54,345, 54,349 
(Aug. 22, 2002) (effective from September 23, 2002).  Under 
the revised criteria, effective September 23, 2002, 
intervertebral disc syndrome is evaluated either on the total 
duration of incapacitating episodes over the past 12 months 
or by combining under 38 C.F.R. § 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.  See 38 C.F.R. § 4.71a, DC 
5293, as amended by 67 Fed. Reg. 54345-54349 (August 22, 
2002).  

A 20 percent evaluation is assigned with incapacitating 
episodes of having a total duration of at least two weeks but 
less than four weeks during the past 12 months; a 40 percent 
evaluation is assigned with incapacitating episodes of having 
a total duration of at least four weeks but less than six 
weeks during the past 12 months; and a 60 percent evaluation 
is assigned with incapacitating episodes of having a total 
duration of at least six weeks during the past 12 months.  
Id. 

Note (1): For purposes of evaluations under DC 5293, an 
incapacitating episode is 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.  "Chronic orthopedic and neurologic 
manifestations" means orthopedic and neurologic signs and 
symptoms resulting from intervertebral disc syndrome that are 
present constantly, or nearly so.  

Note (2): When evaluating on the basis of chronic 
manifestations, evaluate orthopedic disabilities using 
evaluation criteria for the most appropriate orthopedic 
diagnostic code or codes.  Evaluate neurologic disabilities 
separately using evaluation criteria for the most appropriate 
neurologic diagnostic code or codes.  

Note (3): If intervertebral disc syndrome is present in more 
than one spinal segment, provided that the effects in each 
spinal segment are clearly distinct, evaluate each segment on 
the basis of chronic orthopedic and neurologic manifestations 
or incapacitating episodes, whichever method results in a 
higher evaluation for that segment.  

With respect to neurologic manifestations, DC 8510, addresses 
the upper radicular group (5th and 6th cervicals), pertaining 
to the shoulders and elbows; DC 8511 addresses the middle 
radicular group pertaining to movement of the arms, elbows, 
and wrists; DC 8512 addresses the lower radicular group which 
controls use of hands and fingers.  Under all three 
diagnostic codes, incomplete paralysis is rated 20 percent 
when mild, 40 percent when moderate, and 50 percent when 
severe.  A 70 percent rating is warranted for complete 
paralysis under all three radicular groups.  Complete 
paralysis under DC 8510 is defined as all shoulder and elbow 
movement lost or severely affected, hand and wrist movements 
not affected.  Under DC 8511, complete paralysis contemplates 
adduction, abduction, and rotation of the arm, flexion of the 
elbow, and extension of the wrist is lost or severely 
affected.  Complete paralysis of the lower radicular group 
(DC 8512) contemplates all intrinsic muscles of the hand, and 
some or all of flexors of the wrist and fingers are paralyzed 
(substantial loss of use of hand).  38 C.F.R. § 4.124a; DCs 
8510, 8511, 8512, respectively, (2006).  

The term "incomplete paralysis" with peripheral nerve 
injuries indicates a degree of loss or impaired function 
substantially less than the type pictured for complete 
paralysis given with each nerve, whether due to the varied 
level of the nerve lesion or to partial regeneration.  When 
the involvement is wholly sensory, the rating should be for 
mild, or at most, the moderate degree.  See note at 
"Diseases of the Peripheral Nerves" in 38 C.F.R. 
§ 4.124(a).  

The second revision to the Rating Schedule governing the 
rating of spinal disabilities was effective September 26, 
2003.  At that time, VA amended its Schedule for Rating 
Disabilities, 38 C.F.R. Part 4, to institute a general rating 
formula for evaluating diseases and injuries of the spine, 
including lumbosacral strain under DC 5237, spinal stenosis 
under DC 5238, degenerative arthritis of the spine under DC 
5242, and intervertebral disc syndrome under DC 5243.  Under 
the revised criteria, intervertebral disc syndrome 
(preoperatively or postoperatively) will be evaluated 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 § 4.25.  38 C.F.R. § 4.71a, The Spine, Note 
(6) (2006).  

Under the General Rating Formula, a 20 percent rating is 
warranted, in pertinent part, when forward flexion of the 
cervical spine is greater than 15 degrees, but not greater 
than 30 degrees, or the combined range of motion of the 
cervical spine is not greater than 170 degrees; or there is 
muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour such as scoliosis, 
reversed lordosis, or abnormal kyphosis.  A 30 percent 
requires forward flexion of the cervical spine to 15 degrees 
or less; or with favorable ankylosis of the entire cervical 
spine; a 40 percent rating is warranted if the medical 
evidence shows unfavorable ankylosis of the entire cervical 
spine.  A 100 percent rating is warranted if there is 
unfavorable ankylosis of the entire spine.  These ratings are 
warranted if the above-mentioned manifestations are present, 
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.  38 C.F.R. 
§ 4.71a, Diagnostic Codes 5235 to 5243, effective September 
26, 2003).  

The revised rating criteria under the General Formula for 
Diseases and Injuries of the Spine also, in pertinent part, 
provide the following Notes:  

Note (1): Evaluate any associated objective neurologic 
abnormalities, including, but not limited to, bowel or 
bladder impairment, separately, under an appropriate 
diagnostic code.  

Note (2): (See also Plate V.)  For VA compensation purposes, 
normal forward flexion of the cervical spine is zero to 45 
degrees; extension is zero to 45 degrees; left and right 
lateral flexion are zero to 45 degrees; and left and right 
lateral rotation are zero to 80 degrees.  The combined range 
of motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and right 
rotation.  The combined normal range of motion of the 
cervical spine is 340 degrees.  The normal ranges of motion 
for each component of the spinal motion provided in this note 
are the maximum that can be used for calculation of the 
combined range of motion.  Id.  

With respect to evaluating intervertebral disc syndrome, 
effective September 26, 2003, a 40 percent rating is 
warranted for incapacitating episodes having a total duration 
of at least 4 weeks but less than 6 weeks during the past 12 
months.  A 60 percent rating is warranted for incapacitating 
episodes having a total duration of at least 6 weeks during 
the past 12 months.  Note (1) provides that an incapacitating 
episode is 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.  
(38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc 
Syndrome Based on Incapacitating Episodes, effective 
September 26, 2003).  

In this case, the pertinent evidence of record includes 
numerous VA outpatient reports showing treatment for various 
maladies from 2000 to the present, and an October 2006 VA 
examination report.  

A VA outpatient note in December 2000 showed that the veteran 
was evaluated for several maladies, including left shoulder 
pain and occasional paresthesias in the left hand.  On 
examination, there was no clubbing, cyanosis, or edema in the 
left upper extremity and no abnormalities referable to the 
left hand or cervical spine.  The assessment included 
paresthesias in the left hand.  The examiner commented that 
prior EMG studies were negative and did not show any 
compression, but that the veteran wanted a second opinion and 
was referred for surgical consultation.  

On VA surgical consultation in February 2001, the veteran 
reported that his symptoms usually began in the left shoulder 
and radiated down the ulnar distribution affecting the 4th 
and 5th digits of the left hand.  An MRI of the left shoulder 
was negative.  Examination of the left upper extremity was 
normal and no neurovascular abnormalities were noted in the 
left hand.  The impression included no evidence of cubital or 
carpal tunnel syndrome.  The examiner opined that the veteran 
may have ulnar nerve neuropathy originating around the 
brachial plexus area.  

A VA MRI in April 2001 showed prominent hypertrophic 
degenerative spondylosis of the cervical spine, more 
prominent along the upper and lower levels and producing 
spinal stenosis at the C6-7 and C3-4 levels.  

When seen by VA on an outpatient basis in February 2005, the 
veteran denied any pain in his neck and said that his right 
shoulder pain was tolerable and did not interfere with his 
employment.  No pertinent abnormalities referable to the neck 
or left upper extremity were noted. The impression included 
degenerative joint disease of the cervical spine with spinal 
stenosis, asymptomatic at present.  When seen by VA in 
September 2005, the veteran denied any cervical or radicular 
symptoms and said that he was applying for a job as a mail 
carrier and felt that he could perform the job without 
restrictions.  He reported that he exercised and lifted 
weights without difficulty.  No pertinent abnormalities were 
noted on examination.  The impression was unchanged from 
February 2005.  

When examined by VA in October 2006, the veteran complained 
of a constant type pain in the lower cervical spine area and 
said that his only medication was Aleve.  He denied any 
flare-ups and did not report any radiating pain down his arm.  
He reported occasional cramping and stiffness in his right 
hand, but no numbness.  The examiner noted that nerve 
conduction velocity (NCV) studies showed no evidence of 
radiculopathy indicating that there was no peripheral nerve 
impairment from the cervical spine.  The veteran was 
currently employed as a manger at a restaurant and said that 
while he had occasional neck pain, it did not cause him any 
functional impairment or limit his physical activities at 
work.  The veteran denied any incapacitating episodes or any 
need for assistive devices.  

On examination, there was no muscle spasm, tenderness, or 
deformity of the cervical spine.  Forward flexion was to 25 
degrees and extension to 20 degrees, with pain at the end 
ranges of motion.  Lateral flexion was to 30 degrees, 
bilaterally, with pain beginning at 30 degrees.  Rotation was 
to 45 degrees, bilaterally without pain.  The examiner 
commented that there was no additional range of motion loss 
due to pain, fatigue, weakness, or lack of endurance on 
repetitive movement.  On neurological examination, there was 
no focal, motor, or sensory deficits in the upper extremities 
and no muscle wasting, weakness, or atrophy.  The veteran had 
calluses on the palms of both hands, which he said was caused 
by working and lifting things at home and at work.  The 
assessment included prominent hypertrophic degenerative 
spondylosis of the cervical spine with spinal stenosis at C3-
4 and 
C6-7.  The examiner indicated that there was no evidence of 
neuropathy due to the neck disability.  

In the instant case, the medical evidence of record shows 
that the veteran was seen for symptoms associated with neck 
pain on several occasions from the date of receipt of his 
claim up until the VA examination in October2006.  The 
clinical findings on those occasions were rather sparse and 
did indicate that there was any actual paresthesias in the 
left hand.  None of the outpatient reports included any range 
of motion studies of the cervical spine.  However, when 
examined by VA in October 2006, forward flexion of the 
veteran's cervical spine was limited to 25 degrees, which is 
commensurate with moderate limitation of motion under the old 
regulations for DC 5290 in effect prior to September 26, 
2003.  Similarly, limitation of forward flexion to less than 
30 degrees also warrants a 20 percent evaluation under the 
revised General Rating Formula for Diseases and Injuries of 
the Spine, either under Diagnostic Code 5238 (spinal 
stenosis) or Diagnostic Code 5242 (degenerative arthritis of 
the spine), effective from September 26, 2003.  

The veteran maintains that he has had pain and limitation of 
motion of the cervical spine for several years and, through 
no fault of his own, was not afforded a comprehensive 
examination by VA until more than five years after filing his 
claim.  Resolving reasonable doubt in favor of the veteran, 
the Board finds that the objective findings for moderate 
limitation of motion of the cervical spine on the October 
2006 VA examination most likely reflected the actual extent 
and severity of his cervical spine disability since the 
filing of his claim.  Thus, an increased rating to 20 percent 
for his cervical spine disability is warranted prior to 
October 4, 2006 under DC 5290.  

Prior to and from October 4, 2006, the medical evidence of 
record does not show more than moderate limitation of motion 
of the cervical spine.  Thus, a rating in excess of 20 
percent under DC 5290 or under the General Rating Formula for 
Rating Diseases and Injuries of the Spine is not warranted.  

As to rating the veteran under the criteria for ankylosis, it 
is noted that ankylosis is "immobility and consolidation of 
a joint due to disease, injury, or surgical procedure."  
Colayong v. West, 12 Vet. App. 524 (1999).  The veteran 
retains significant motion of the spine, and there is no 
claim or evidence of vertebra fracture of the cervical spine.  
Thus, DCs 5287 and 5285, respectively, are not applicable to 
the facts in this case.  

Although the veteran reports chronic neck pain and occasional 
numbness in his left hand, no objective evidence of any 
actual symptoms of intervertebral disc (IVD) syndrome have 
been demonstrated at any time during the pendency of this 
appeal, including when examined by VA in October 2006.  On VA 
examination, there was no muscle wasting, weakness, or 
atrophy, and no evidence of radiculopathy or any other 
neurological findings appropriate to the site of the diseased 
disc suggestive of peripheral nerve impairment.  Therefore, 
the Board finds that the cervical spine disability is not of 
such severity to warrant an evaluation in excess of 20 
percent under the old criteria for IVD syndrome.  

The Board must also consider whether the veteran is entitled 
to an evaluation in excess of 20 percent under the revised 
rating criteria for disabilities of the spine effective 
September 23, 2002, and the criteria effective from September 
26, 2003, the effective dates of the revised regulations.  As 
indicated above, the revised regulations may not be applied 
prior to the effective date of the change.  VAOPGCPREC 3-
2000.  

In this regard, the evidence does not show that he has 
experienced incapacitating episodes having a total duration 
of at least two weeks but less than four weeks during the 
past 12 months.  In fact, the current clinical and diagnostic 
findings do not satisfy the criteria for even a 10 percent 
rating under the revised criteria based on incapacitating 
episodes.  The veteran does not claim nor is there any 
objective evidence that he was prescribed bed rest at anytime 
during the pendency of this appeal.  Thus, the Board finds 
that the evidence does not meet the criteria for an 
evaluation in excess of 20 percent under either the old or 
the revised regulations prior to and from October 4, 2006.  

The Board has also considered whether an increased evaluation 
is in order in this case when separately evaluating and 
combining the orthopedic and neurologic manifestations of the 
veteran's low back disability, under the revised orthopedic 
rating criteria and applicable neurologic rating criteria in 
effect between September 23, 2002, and September 26, 2003, 
and under the revised orthopedic rating criteria and any 
applicable neurologic rating criteria from September 26, 
2003.  

In this regard, other than complaints of paresthesias in the 
4th and 5th digits of the left hand, the clinical and 
diagnostic evidence of record does not reveal any objective 
evidence of any neurological abnormalities or impairment.  
The orthopedic manifestations of the veteran's cervical spine 
disability involves primarily limitation of motion which, as 
discussed above, is not shown to be more than moderate in 
degree.  A 20 percent evaluation is the appropriate rating 
for moderate limitation of motion of the cervical spine under 
the old rating schedule pursuant to DC 5290.  Likewise, under 
the new General Rating Formula for Disease and Injuries of 
the Spine based on total limitation of motion, limitation of 
flexion to less than 30 degrees warrants a rating of no more 
than 20 percent.  As there is no clinical or diagnostic 
evidence of any neurological findings, there is no basis to 
assign a separate rating under any of the applicable 
neurological rating codes.  Thus, consideration of separately 
evaluating and combining the neurologic and orthopedic 
manifestations of the veteran's cervical spine disability 
would not result in a higher rating from September 23, 2002, 
or from September 26, 2003.  

Finally, consideration must also be given to any functional 
impairment of the veteran's ability to engage in ordinary 
activities and the effect of pain on the functional 
abilities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2006).  

The evidence shows that the veteran has a good strength and 
significant range of motion in his neck, and no demonstrable 
neurological impairment referable to the cervical spine.  The 
evidence shows that while he was seen by VA for neck pain on 
a couple of occasions since the filing of his claim, no 
significant orthopedic or neurological findings were noted at 
any time.  The reports indicated that over-the-counter 
medications have helped to alleviate his symptoms and there 
is no claim or objective evidence of any flare-up of symptoms 
that have impacted negatively on his occupational activities.  
The veteran is currently employed as a manager of a 
restaurant and reported that he his neck pain has not 
interfered with his employment.  The Court has held that, "a 
finding of functional loss due to pain must be supported by 
adequate pathology and evidenced by the visible behavior of 
the claimant.  38 C.F.R. § 4.40."  Johnston v. Brown, 10 
Vet. App. 80, 85 (1997).  As noted above, the VA examination 
in October 2006 showed no more than moderate limitation of 
motion, no muscle weakness or atrophy, and no neurological 
impairment.  In light of the clinical findings of record, the 
Board finds that an increased evaluation based on additional 
functional loss due to the factors set forth above have not 
been demonstrated at anytime during the pendency of this 
appeal.  




ORDER

An increased evaluation to 20 percent for prominent 
hypertrophic degenerative spondylosis of the cervical spine 
with spinal stenosis at C3-4 and C6-7 from July 18, 2001 to 
October 3, 2006, is granted, subject to VA regulations 
pertaining to the payment of monetary benefits.  

An evaluation in excess of 20 percent for prominent 
hypertrophic degenerative spondylosis of the cervical spine 
with spinal stenosis at C3-4 and C6-7, from October 4, 2006, 
is denied.  



		
	S. L. Kennedy
	Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs