Citation Nr: 1135106 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 08-27 348 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative disk disease (DDD) with spondyloarthritis, cervical spine, at C4-5 and C 5-6. 2. Entitlement to an initial rating in excess of 30 percent for residual right upper extremity weakness and numbness. 3. Entitlement to service connection for a skin disorder, including as due to exposure to herbicides and chemicals. ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in St. Petersburg, Florida. It was remanded by the Board for additional development in April 2010, and has now been returned to the Board for appellate disposition. The issue of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's DDD with spondyloarthritis, cervical spine, at C4-5 and C5-6, was not characterized forward flexion of the cervical spine to 15 degrees or less or by any type of ankylosis. The Veteran was not shown to have any incapacitating episodes of intervertebral disk syndrome. 2. The Veteran's residual right extremity weakness and numbness was not shown to be characterized by severe incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DDD with spondyloarthritis, cervical spine, at C4-5 and C5-6, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2010). 2. The criteria for a rating in excess of 30 percent for residual right extremity weakness and numbness were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8515 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. 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 his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in June 2006, prior to the rating decision that is appealed herein, which explained VA's duty to assist the Veteran with obtaining evidence in support of his claims. It also explained what the evidence needed to show in order to establish service connection for a claimed disability and explained the general manner whereby VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for his neck disorder and associated neurological complications is a downstream issue from his claim for entitlement to service connection for a neck disorder. The RO granted service connection for DDD with spondyloarthritis, cervical spine, at C4-5 and C5-6 and assigned a 10 percent rating for that disability. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. The Veteran's rating for his neck disorder was subsequently increased to 20 percent, effective the date of his claim. He was also granted a separate rating for residual right upper extremity weakness and numbness effective July 25, 2008. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that although VA is required to issue a Statement of the Case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the Veteran was sent an SOC dated in June 2008 as well as supplemental statements of the case (SSOC's) dated in March 2009 and July 2011, which addressed the applicable criteria for rating the Veteran's neck disability. In addition to its duties to provide various notices to claimants, VA also must make reasonable efforts to assist the claimant 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; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, and written statements that were submitted by the Veteran. The Veteran indicated that he had recent neck surgery at South Florida Spine Clinic. In a letter dated in April 2010 the Veteran was requested to provide a release enabling VA to obtain records from this provider. The Veteran failed to do so. The Board notes that "[t]he duty to assist is not always a one way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board therefore finds that no further assistance in this area is required. The Veteran was provided with multiple examinations of his neck in connection with this claim. Those examinations adequately documented the symptoms of the Veteran's neck disability. The Board finds that the examinations were adequate to allow proper adjudication of the issue on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. There is no indication that the disorder has increased in severity since the most recent examination. For these reasons, the Board finds that VA satisfied the obligations imposed by the VCAA in this case. Prior Remand This case was remanded by the Board in April 2010. A Veteran has a right to substantial compliance with the instructions that are set forth in a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); See also Dyment v. West 13 Vet. App. 141, aff'd sub nom Dyment v. Principi, 287 F.3d 1377, 147 (2002) (remand not required under Stegall where Board's remand instructions were substantially complied with). In this case, the Board instructed that VA should obtain records pertaining to the Veteran's neck surgery and then readjudicate the claim. VA contacted the Veteran and requested that he provide an appropriate release. However, the Veteran failed to provide the requested release; therefore VA was unable to get copies of these records. The Veteran's claim was thereafter readjudicated in a July 2011 SSOC. Under these circumstances, the Board finds that there was substantial compliance with the April 2010 remand. Initial Rating The Veteran contends that the 20 percent rating assigned for the orthopedic manifestations of his neck disorder does not adequately reflect his symptoms. He also contends that his neurological symptoms are more severe than are encompassed by the currently assigned 30 percent rating. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the 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 claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts In a written statement dated in September 2006 the Veteran's wife wrote that the Veteran had pain and decreased rotation of his neck. In an undated statement, the Veteran wrote that he had enormous pain and limited mobility in his neck. The Veteran's neck was first examined by VA in November 2006. At that time the Veteran reported that ever since an in-service motor vehicle accident he had intermittent pain in his neck. He rated the pain in his cervical spine as constant, and 6 to 10 out of 10 in severity. There was radiation of the pain in the cervical spine to the head. His neck was stiff. He was not taking any medications for his neck pain. He had flare ups of neck pain that were precipitated by certain motions of his neck. They were usually relieved without any specific reasons or treatments. The flare ups occurred 3 times per week and lasted for approximately 30 minutes. The Veteran noticed some numbness and soreness at the ultra surface of the distal one-third of the forearm extending to the wrist bilaterally. The Veteran denied losing any time from work due to his neck pain. Range of motion of the cervical spine was forward flexion from 0 to 35 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 25 degrees, and left and right lateral rotation from 0 to 60 degrees. There was no pain on motion of the neck. The examiner opined that repetitive motion of the cervical spine would reduce the degree of forward flexion from 35 to 30 degrees, and extension from 30 degrees to 25 degrees. Lateral flexion and rotation would not be affected. X-rays of the cervical spine dated in November 2006 showed degenerative change in the cervical spine, C4-5 and C5-6. Deep tendon reflexes in both upper extremities were equal. The examiner diagnosed DDD and degenerative spondyloarthritis. No neurological disorder was diagnosed at that time. In December 2007 the Veteran contended that he had limited motion, loss of flexion, and periods of incapacitation that exceeded 4 weeks within a 12 month period. A July 2008 letter from the Veteran's physician indicated that the Veteran underwent an extensive decompression for severe cervical stenosis with significant spondylitic myelopathy and evidence of spinal cord disease including upper extremity weakness, particularly in the C7-T1 distribution on the right side, as well as significant dexterity issues with his upper extremities due to his spinal cord disease. Prior to surgery, he had ataxia (lack of muscle coordination) which was somewhat improved since the operation, but he continued to have ataxia as a result of spinal cord disease. The examiner reported that an LEA evaluation described the Veteran as having cervical disk disease at the levels of C4-5 and C5-6, which did not address the Veteran's significant neurologic findings and significant disability related to his inability to use his upper extremities because of spinal cord disease and nerve root disease. The examiner opined that the Veteran was unable to work because of his cervical spine disability. On his VA Form 9 dated in August 2008 the Veteran wrote that he recently had surgery on his neck. The Veteran's neck was next examined by VA in January 2009. At that time, the Veteran reported that he underwent a posterior laminectomy of the cervical spine in October 2007. He reported that after that surgery he had a partial paralysis of his right upper extremity and that the pain seemed to be getting worse. The Veteran claimed that he had constant pain from 3 to 7 out of 10 in severity. There was no radiation of the pain. He was right hand dominant. The Veteran was not taking any medication for his neck pain. He had flare ups of pain which were precipitated by lifting more than 5 pounds. They occurred on a daily basis, last 15 minutes, and were relieved without any specific treatment. The Veteran denied any dizziness or blurred vision or visual disturbances. He reported that his right hand seemed to get numb on and off. He reported weakness of the right upper extremity. He was right hand dominant. He did not use any braces or orthosis for his cervical spine. He walked without any assistive devices although he claimed to be limited in walking to 100 feet. He stated that he needs occasional assistance with activities of daily living such as taking off t-shirts. He stopped working after his October 2007 surgery. X-rays of the cervical spine dated in January 2009 showed osteoarthritic changes with osteophyte formations and narrowing of the disk spaces between C5-6 and C6-7. He is status post laminectomy on the lower cervical spine. Upon examination the Veteran had some weakness of the wrist extensors which were rated as normal minus. He also had a slight tightness of the flexors of the digits of the right hand which could reach with the wrist in a neutral position. Between flexion and extension, the fingers could be fully extended. When the wrist was dorsiflexed there was a slight tendency of the fingers to flex. He had 2+ biceps and 1+ triceps reflexes that were equal bilaterally. He had decreased sensation on the ulnar aspect of the palm of the right hand. He had good pulses. Motor muscle testing showed a slight weakness of the dorsiflexors of the wrist and extensors of the fingers. He had a tremor of the right hand. Range of motion was forward flexion from 0 to 20 degrees, extension from 0 to 10 degrees, left and right lateral flexion of 0 to 20 degrees and left and right lateral rotation 0 to 40 degrees with pain. Repetitive motions of the cervical spine had no effect on the Veteran's range of motion, pain, fatigability, coordination, weakness, or endurance. Opinions as to whether there would be any further decrease in the range of motion during the flare-ups would be based on speculation so no opinion was given. The examiner diagnosed spondyloarthritis with DDD, C4-5, C6-7. A. DDD with spondyloarthritis, cervical spine, at C4-5 and C5-6 The Veteran's neck disorder is rated pursuant to the "General Rating Formula for Diseases and Injuries of the Spine." 38 C.F.R. 4.71a, diagnostic code 5243. Pursuant to these rating criteria, a 20 percent rating is assigned for forward flexion of the cervical spine between 16-30 degrees, or a combined range of motion of the cervical spine not greater than 170 degrees, or 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 rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating applies when there is unfavorable ankylosis of the entire spine. These ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals or injury or disease. There are also alternative rating criteria applicable to rating intervertebral disk syndrome based on incapacitating episodes. However, for purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disk syndrome that required 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" at note 1. There is no medical evidence that the Veteran had any episodes of intervertebral disk syndrome that met these criteria during the appeal period. While in a written statement the Veteran claimed to have numerous periods of incapacitation, he did not mention these at any of his VA examinations, referring instead to flare ups of 15 to 30 minutes that were relieved without treatment. Therefore, these alternative rating criteria are not applicable to this case. The evidence does not show that the Veteran meets the criteria for a rating in excess of 20 percent for the orthopedic manifestations of his cervical spine disability. His cervical spine range of motion was not limited to 15 degrees or less, even after repetitive motion, and there was no ankylosis of the cervical spine. The Veteran also was not shown to have any associated neurological deficits prior to July 25, 2008. Although the Veteran reported some numbness in his arms at the November 2006 examination, there was no diagnosis of an actual neurological disorder at that time. Rather, the first medical evidence of a neurological disorder was the July 2008 letter from the Veteran's physician. When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. See, e.g., Colayong v. West, 12 Vet. App. 524, 536 (1999). The determination of whether a claimant is entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is a three step inquiry. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In order to make this determination, the level of severity and symptomology of the claimant's service connected disability must be compared to the established criteria in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptoms, the assigned schedular evaluation is adequate. Id. If they do not, the VA must undertake the second step of the inquiry, which is to determine whether the claimant's disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id at 115-116. If an analysis of the first two steps indicates that the first two factors exist, the third step is to refer the case to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether justice requires the assignment of an extraschedular rating. Id at 116. In this case, the Veteran's symptoms of pain and limited motion of the cervical spine are expressly contemplated by the rating schedule. Hence, the question of the whether the Veteran's symptoms markedly interfere with his employment is not reached in the analysis of whether he is entitled to an extraschedular rating for the orthopedic manifestations of his spinal disorder. It is further noted that the letter from the Veteran's physician attributed a great deal of the Veteran's disability to neurological deficits which are separately rated. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable with respect to the instant claim because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, a higher rating for the Veteran's neck disability is denied. B. Right Upper Extremity Weakness and Numbness The Veteran's right upper extremity weakness and numbness is rated by analogy to paralysis of the median nerve, 38 C.F.R. § 4.124a, diagnostic code 8515. Complete paralysis of the median nerve is characterized by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex the distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of the wrist weakened, and pain with trophic disturbances. A 30 percent rating is assigned for moderate incomplete paralysis or the median nerve of the dominant hand. A 40 percent rating is assigned for severe paralysis of the non-dominant extremity. A 50 percent rating is assigned for severe paralysis of the dominant extremity. A 60 percent rating is assigned for complete paralysis of the non-dominant side. A 70 percent rating is assigned for complete paralysis on the dominant side. In this case, while the Veteran's physician indicated that the Veteran had ataxia and significant dexterity issues, objective examination did not show a level of disability that was more than moderate. The Veteran had only "some" weakness of the wrist extensors which was rated as normal minus. Tightness of the flexors of the digits of the right hand was only slight and they could reach with the wrist in neutral position. The fingers could be fully extended between flexion and extension. When dorsiflexed, there was a tendency of the fingers to flex but this was only slight. Motor muscle testing showed only a slight weakness of the dorsiflexors of the wrist and the extensors of the fingers. The Veteran had 2+ biceps and 1+ triceps reflexes bilaterally and there was some diminished sensation of the ulnar aspect of the palm of the right hand only. These symptoms are not so significant as to amount to severe paralysis of the dominant extremity. The Board also finds that the Veteran's symptoms did not present such an exceptional disability picture as to render the schedular rating inadequate at any time. 38 C.F.R. § 3.321(b). See also Thun, 11 Vet. App. at 115. As previously noted, while the Veteran's physician indicated that the Veteran was unable to work due to his service connected orthopedic and neurological problems related to his cervical spine, this step of the inquiry is not reached because the Veteran's symptoms of some weakness and tightness and some diminished sensation is adequately contemplated by the rating schedule. Moreover, the symptoms found on objective examination of the Veteran were less severe than those which were noted on the letter from the Veteran's private physician. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 20 percent for DDD with spondyloarthritis, cervical spine, at C4-5 and C5-6 is denied. A rating in excess of 30 percent for residual right upper extremity weakness and numbness is denied. REMAND As noted in the April 2010 remand, the Veteran has proffered 3 alternative causes which he believes may have led to his skin disorder. In addition to herbicide exposure, the Veteran contends that he was repeatedly sunburned during his service and that he transported jet fuel which frequently spilled on his arms, legs, and hands. The Board remanded the Veteran's claim for a VA examination to address his contentions. The Veteran was afforded the requested examination in August 2010 and an addendum was prepared on November 2010. While the examiner specifically addressed the Veteran's contention that his skin disorder was caused by exposure to herbicides, she did not specifically address his contentions that contact with jet fuel or in service sunburns caused his skin problem. While the examiner opined that the Veteran's skin disorder was not related to service, her explanation indicates that this opinion was solely based on the lack of continuity of symptoms since service. As such, it suggests that the examiner did not consider the Veteran's other contentions regarding the jet fuel and sunburns. Therefore, an addendum opinion should be obtained regarding whether the Veteran's skin disorder was caused by exposure to jet fuel or in-service sunburns. Accordingly, the case is REMANDED for the following action: 1. An addendum opinion should be obtained from the examiner who performed the August 2010 examination, or from a similarly qualified examiner. The examiner should provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran's currently diagnosed skin disorder resulted from either (a) skin contact with jet fuels which spilled on his arms, legs, and hands, or (b) sunburns that the Veteran had during his service. If a new examination is required in order for the examiner to provide the requested opinion, then one should be conducted. The examiner should set forth a complete rationale for his or her conclusions in the report of examination. If the examiner is unable to provide the requested examination without resort to undue speculation, then he or she should explain why this is the case. 2. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs