Citation Nr: 0728410 Decision Date: 09/11/07 Archive Date: 09/25/07 DOCKET NO. 05-12 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for a cervical spine disorder, including herniated nucleus pulposus with degenerative disc disease and spinal stenosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1977 to August 2002. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by Roanoke Regional Office (RO) of the Department of Veterans Affairs (VA) that, among other things, awarded service connection effective September 1, 2002 as follows: bilateral glaucoma, 20 percent disabling; and herniated nucleus pulposus with degenerative disc disease of the cervical spine, 10 percent disabling. The rating decision also denied service connection for right wrist ganglion cyst. In April 2004, the veteran filed a notice of disagreement with the above-mentioned issues. In May 2004 correspondence, the veteran specifically expressed his desired to withdraw his appeal seeking an increased rating for glaucoma. In a July 2004 rating decision, the RO granted service connection for right wrist ganglion cyst and assigned a noncompensable rating and increased the rating assigned to the cervical disorder to 20 percent disabling. On his March 2005 Form 9, the veteran perfected his appeal in regards to his cervical spine disorder and provided a notice of disagreement in regards to the rating assigned for ganglion cyst. An August 2006 rating decision increased the rating assigned for the right wrist ganglion cyst to 10 percent disabling. The veteran did not perfect his appeal in regards to this issue and it is not before the Board. FINDINGS OF FACT Throughout the appeal period, the veteran's service-connected cervical spine disorder is manifested by no more than moderate limitation of motion and no more than moderate intervertebral disc syndrome; forward flexion of the cervical spine has consistently been greater than 15 degrees; ankylosis, incapacitating episodes and separately ratable neurological impairment are not shown. CONCLUSION OF LAW An initial rating in excess of 20 percent is not warranted for the veteran's cervical spine disorder. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45. 4.71a, Code 5290, 5293 (effective prior to Sept. 23, 2002), Code 5293 (effective prior to September 26, 2003), Codes 5237, 5238, 5243 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 VCAA notice 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 his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection for a cervical spine disorder and an effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007). A July 2004 statement of the case (SOC) provided notice on the "downstream" issue of effective dates of awards and notified the veteran about the changes in the rating criteria affecting cervical spine disorders; a July 2004 rating decision and an August 2006 supplemental SOC readjudicated the matter. 38 U.S.C.A. § 7105. Neither the veteran nor his representative has alleged that notice in this case was less than adequate. The veteran has not identified any pertinent evidence that remains outstanding. VA examinations were provided in March 2003 and October 2005. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. II. Factual Background A review of service medical records (SMR's) provided background information as to the nature and extent of the veteran's service-connected cervical spine disorder. SMR's showed that the veteran was involved in a motor vehicle accident in September of 1998. Since that time, he had chronic neck pain with some right scapular and shoulder pain. He had a trial of traction and oral medication along with physical therapy. An August 1999 record noted that cervical spine films from July 1999 showed mild straightening of the lordotic curve with good alignment. A July 1999 MRI revealed mild reversal of the lordotic curve. The diagnosis included musculoskeletal neck pain and cervical herniated nucleus pulposus without radiculopathy, right C5-6 and central to right C6-7. The records showed that the veteran was in physical therapy from October 2000 to January 2001. A February 2001 record noted that the veteran indicated that in July 2000 he was struck in the head with a safe and sustained an osteophyte fracture at C6. The record noted that September 2000 cervical spine films demonstrated moderate changes with spurring anteriorly of C4, C5, and C6. The assessment was possible cervical spondylosis with chronic neck pain. A May 2001 record noted continued discomfort in the neck on a daily basis with pain into the right shoulder and lateral aspect of the right arm, down to the elbow. It was noted that an April 2001 MRI demonstrated some spondylotic changes at C3-4, C4-5, C5-6, and C6-7. A June 2001 record included results of a June 2001 MRI that showed some reversal of the normal lordotic curve. At C3-4, C4-5, and C5-6, there was a combination disc and osteophytes posteriorly. At C3-4 and C4-5, there was some mild to moderate stenosis. At C5-6, there was mild stenosis. At C6- 7, there was a right lateral herniated nucleus pulposus that narrowed the inward potion of the right C6-7 neural foramen. On March 2003 VA examination, the veteran indicated that he had constant neck pain and intermittent shoulder and upper back pain on both upper extremities. He was treated with traction and physical therapy, but continued to have pain on a daily and yearly basis. His activities of daily function decreased during flare-ups. He stated that a flare-up could last from four to six weeks. The pain traveled from his cervical spine to his right and left shoulder and both arms. He indicated that a physician recommended bed rest to treat this condition during each flare-up. The functional impairment decreased his ability to move with ease, to grip objects firmly, and to sit or stand for long periods of time. He was unable to sleep without medication. He lost two or three days (of work) during flare-ups because of this condition. He indicated that he fatigued easily. He had intermittent weakness and pain. He had a decreased range of motion in his neck and weakness in both extremities, but was able to keep up with his normal work requirement. Physical examination revealed radiation of pain on movement, specifically left rotation and left lateral flexion. There were no muscle spasms. His back was tender to palpation intervertebrally at C5-6, C6-7, and C7-T1. Range of motion studies showed flexion was to 40 degrees with pain at 40 degrees; extension was to 35 degrees with pain at 35 degrees; right lateral flexion was to 35 degrees with pain at 35 degrees; left lateral flexion was to 25 degrees with pain at 25 degrees; right rotation was to 60 degrees with pain at 60 degrees; and left rotation was to 55 degrees with pain at 55 degrees. There was no ankylosis or signs of radiculopathy. Upper extremity motor function was normal. X-rays revealed that vertebral body alignment and appearance was satisfactory. Anterior osteophytes were seen at the C5 and C6 levels. The disc spaces were maintained. The exit foramina were patent and lung apices were clear. The impression was anterior spurring at C5 and C6 levels. The VA examination diagnosis was herniated nucleus pulposus with degenerative disc disease at C6-C7. On October 2005 VA examination, the veteran indicated that he was in constant pain. When he had pain he could function with medication. The pain in the neck and back occasionally radiated to the left arm and right shoulder. He stated that the condition did not cause incapacitation. There was no functional impairment and the condition did not result in any time lost from work. Physical examination revealed evidence of radiating pain on movement that radiated down to the shoulder with no evidence of muscle spasm. There was tenderness on the cervical spine. Ankylosis was not shown. Range of motion was as follows: flexion was to 45 degrees; right lateral flexion was to 45 degrees; left lateral flexion was to 45 degrees; right rotation was to 80 degrees; left rotation was to 80 degrees and the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurological findings of the upper and lower extremities revealed that motor function was within normal limits. The diagnoses were spinal stenosis and herniated nucleus pulposus with degenerative disc disease of the cervical spine. III. Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2006). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The veteran's service connected cervical spine disorder encompasses cervical strain, spinal stenosis, and degenerative disc disease. These disabilities can be evaluated either under the general criteria/formula for rating disabilities of the spine or specific criteria pertaining to disc disease (i.e. the intervertebral disc syndrome rating criteria). The criteria for rating intervertebral disc syndrome were revised effective September 23, 2002. Also, the general criteria for rating disabilities of the spine, along with specific criteria for rating intervertebral disc syndrome were revised effective September 26, 2003. When the regulations concerning entitlement to a higher rating change during the course of an appeal, the veteran is entitled to resolution of the claim under the criteria that are more advantageous. VAOPGCPREC 3-00. The old criteria may be applied for the full period of the appeal. Id. The new rating criteria, however, may only be applied to the period of time after the effective date. Id. In the July 2004 and August 2006 SSOC, the veteran was advised of the old and new rating criteria. The RO considered the veteran's disability rating under both the old and new rating criteria. The Board will also evaluate the veteran's disability under both the old and new rating criteria. Given that the veteran has already been assigned 20 percent rating for his cervical spine disorder, the focus is on criteria that would allow for a rating in excess of 20 percent. Given that neither ankylosis or symptomatic vertebral fracture are shown (See Codes 5285, 5286, 5287), ratings in excess of 20 percent are available under Code 5290 for limitation of motion of the cervical spine and under Code 5293 for intervertebral disc syndrome. Code 5290 provides a 20 percent rating for moderate limitation of motion of the cervical spine and a 40 percent rating for severe limitation of motion of the cervical spine. Code 5293 provides a 20 percent rating for recurring attacks of moderate intervertebral disc syndrome; a 40 percent rating for severe disc disease, with recurring attacks and intermittent relief; and a 60 percent rating for pronounced disease, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. [A Note to the General Rating Formula for Diseases and Injuries of the Spine provides that, for VA compensation purposes, normal flexion and extension of the cervical spine is 0 to 45 degrees, normal left and right lateral flexion is 0 to 45 degrees and normal left and right lateral rotation is 0 to 90 degrees.] 38 C.F.R. § 4.71a. The evidence of record does not show that the veteran suffers from severe attacks of cervical intervertebral disc syndrome. The only pathology noted on March 2003 x-rays was satisfactory vertebral body alignment and appearance with anterior osteophytes at the C5 and C6 levels. The disc spaces were maintained. No examination of record reflects severe cervical disc disease. Although pain was noted on motion and there was tenderness to palpation on March 2003 and October 2005 VA examinations, there was no spasm, no weakness or signs of radiculopathy. On October 2005 examination, the examiner specifically found that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. It was also noted that there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Consequently, a rating in excess of 20 percent under the pre-September 23, 2002 Code 5293 is not warranted. The evidence of record also does not show that the veteran's cervical spine disorder results in severe limitation of motion. On March 2003 VA examination cervical motion was 40 degrees flexion with pain at 40 degrees, 35 degrees extension with pain at 35 degrees, 25 degrees left lateral flexion with pain at 25 degrees, 35 degrees right lateral flexion with pain at 35 degrees, 55 degrees of left rotation with pain at 55 degrees and 60 degrees of right rotation with pain at 60 degrees. Given the above ranges of motion, such findings do not reflect more than moderate limitation of cervical spine motion, a rating in excess of 20 percent under Code 5290 is not warranted. (Notably, on October 2005 VA examination range of motions studies showed improvement from the March 2003 VA examination and also would not support warranting a rating in excess of 20 percent.) Criteria in Effect from September 23, 2002 As mentioned above, from September 23, 2002 the revised Code 5293 provides that intervertebral disc syndrome should be 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 neurological manifestations, whichever method results in the higher rating. A 20 percent rating was warranted for incapacitating episodes under Code 5293 if such episodes had a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating was warranted if such episodes had a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent (maximum) rating was warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. On March 2003 VA examination, the veteran reported a history of having flare-ups that decreased his activities of daily function, which could last from four to six weeks. He also indicated that a physician recommended bed rest to treat this condition during each flare-up. Although the veteran appears to suggest that he has been "incapacitated" for periods of at least four weeks, the medical evidence does not show that he was prescribed bed rest by a physician and treated by a physician for at least four weeks due to an incapacitating episode. Note 1 following Code 5243 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. Furthermore, on October 2005 VA examination, he specifically stated that the cervical spine disorder did not cause incapacitation and there was no functional impairment. Consequently, a rating in excess of 20 percent on the basis of incapacitating episodes is not warranted. Regarding a combined rating for separate orthopedic and neurological impairment, there is no objective evidence of record of separately compensable neurological impairment stemming from the veteran's cervical spine disorder. Also, on October 2005 VA examination, the examiner found that there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Since the criteria for rating orthopedic cervical spine impairment were not revised effective September 23, 2002, a rating in excess of 20 percent based on combined neurological and orthopedic manifestations is not warranted. Criteria in Effect from September 26, 2003 Under Code 5243, as it pertains to incapacitating episodes, the renumbered rating criteria are essentially identical to those in Code 5293 (in effect from September 23, 2002 to September 26, 2003); consequently, the analysis based on incapacitating episodes remains unchanged. Under the General Rating Formula, a 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the cervical spine, a 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, (effective September 26, 2003). Given that forward flexion of the cervical spine is not shown to be 15 degrees or less, and that ankylosis has never been reported, a rating in excess of 20 percent under the General Rating Formula is not warranted. Additional factors that could provide a basis for an increase have also been considered. However, as noted above, the October 2005 examiner specifically opined that there was no additional limitation, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was evidence of tenderness and radiating pain on movement; however, there was no objective evidence of spasm or nerve root involvement. Consequently, there is no objective basis for an increased rating based on functional loss. In summary, a rating in excess of 20 percent is not warranted for the veteran's cervical spine disorder under any applicable criteria. As an increased rating is not warranted at any point in time during the appellate period, "staged ratings" are not for consideration. There is a preponderance of the evidence against this claim, and it must be denied. ORDER A rating in excess of 20 percent for cervical spine disorder is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs