Citation Nr: 1520691 Decision Date: 05/14/15 Archive Date: 05/26/15 DOCKET NO. 12-10 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial increased rating in excess of 30 percent for a cervical spine disability. 2. Entitlement to an initial increased rating in of 20 percent for a low back disability. 3. Entitlement to an initial increased rating in excess of 10 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from May 1984 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran submitted a letter in June 2013 wherein she limited her appeal for her thoracic spine disability to an increased rating of 20 percent. This intention is also apparent from her representative's brief of August 2014 wherein the representative contends that Veteran's lower back disability "more closely resemble the criteria for the next higher evaluation." Thus, the Board has limited the appeal as reflected on the title page. Moreover, as the Board is granting the Veteran's request for the next higher evaluation for her thoracic spine disability, the discussion below is limited in scope, only discussing how the Veteran has met the 20 percent criteria. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The issues of entitlement to an initial increased rating in excess of 10 percent for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At no time during the appeal period has the Veteran's cervical spine disability manifest unfavorable ankylosis. 2. In considering the entire period on appeal and affording the Veteran the benefit of the doubt, the Veteran's pain and corresponding functional impairment, including during flare-ups, her thoracolumbar spine disability has been manifested by pain and limited range of motion with severe weekly flare-ups. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5287, 5290, 5293 (2014) 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2014). 2. Throughout the appeal, the criteria for a disability rating of 20 percent, but no higher, for a thoracolumbar spine disability were met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the most recent notice provided to the Veteran was in June 2013, prior to the most recent supplemental statement of the case (SSOC) in September 2013. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Importantly, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). The AOJ associated the Veteran's service treatment records, service personnel records and VA treatment records with the claims file. In September 2011 and October 2012, VA provided the Veteran with a medical examination and obtained a medical opinion addressing the current status of the Veteran's disability. The examination and opinion are adequate for the disability, discussed below, as the examination reports show that the examiners considered the relevant history of the Veteran's disability. The examiners provided a sufficiently detailed description of the disability, and the examiners provided an analysis to support his opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Increased Ratings - General 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 degrees of disability specified by the schedule 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). 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. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appeals the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate her for times since filing her claim when her disability may have been more severe than at other times during the course of her appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207 -08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. Increased Rating - Requirements for the Cervical Spine Under the General Rating Formula for Diseases and Injuries of the Spine the Veteran's current 30 percent rating is due to her meeting the following requirements of a 30 percent rating: forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. To meet the next higher rating of 40 percent, the Veteran's cervical spine must demonstrate unfavorable ankylosis of the entire cervical spine. A 100 percent rating for the spine requires unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined under Note (5) of the General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Merits - Cervical Spine Increase The Veteran contends that she is entitled to a higher evaluation because of the level of pain that her neck disability has caused her in her daily life. In support of her contention the Veteran has submitted private treatment records from her chiropractor, her acupuncturist, her orthopedic surgeon, and VA treatment records. In sum these records support the Veteran contention that she is suffering under a large amount of pain. The Board is sympathetic about the level of pain the Veteran is suffering under but is bound by the rating criteria provided under the General Rating Formula for Diseases and Injuries of the Spine. This 40 percent rating criteria requires: Unfavorable ankylosis of the entire cervical spine. This "unfavorable ankylosis" occurs when both the cervical spine is fixed in flexion or extension and the ankylosis results in one or more of the following: (1) difficulty walking because of a limited line of vision; (2) restricted opening of the mouth and chewing; (3) breathing limited to diaphragmatic respiration; (4) gastrointestinal symptoms due to pressure of the costal margin on the abdomen; (5) dyspnea or dysphagia; (6) atlantoaxial or cervical subluxation or dislocation; (7) or neurologic symptoms due to nerve root stretching This is not the case here with the Veteran's cervical spine disability. Taking into her accounts of pain the Veteran has not asserted and the evidence collected and submitted by the Veteran does not provide evidence of the Veteran's cervical spine being fixed in either flexion or extension. Instead, the evidence shows range of motion in the Veteran's cervical spine albeit limited and with pain. This is supported by both the VA examination conducted in September 2011 and October 2012 VA examination which both reported range of motion in the Veteran's cervical spine. This evidence is supported by the evidence the Veteran has submitted which includes May 2012 treatment note wherein the Veteran's chiropractor wrote "Cervical range of motion is normal for the patient's age, but produces pain around C7 on virtually all motion." The Veteran's private physician Dr. A. G. reports similar finding in a June 2011 private treatment note submitted by the Veteran wherein he writes, "Cervical mobility is normal." Similar finding were observed by a second private treating physician Dr. S. N. who wrote in an April 2011 private treatment note that the Veteran "Objective findings of the cervical spine, she shows marked tenderness diffusely. Her range of motion is reasonable with flexion and extension." The Veteran's acupuncturist also wrote in a more recent May 2013 treatment note "Much better this month the pain level @ neck about 4/10. Sometimes the [illegible] up and down 4~7/10 throughout the day trap muscle about 6-7/10. ROM = Normal" Considering the foregoing, the Board finds that there is no evidence to support raising the Veteran's rating for her cervical spine above the current 30 percent rating as the evidence does not demonstrate that she has "unfavorable ankylosis" of the cervical spine. By extension the evidence does not demonstrate that the Veteran has "unfavorable ankylosis" of the entire spine. To the extent that the Veteran is seeking additional compensation due to functional loss pursuant to 38 C.F.R. §§ 4.40 and 4.45, these provisions are not applicable. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Accordingly, a rating greater than 30 percent for the Veteran's cervical spine disability is not warranted. Increased Rating - Requirements for the Thoracic Spine The rating criteria for a 20 percent evaluation of the thoracic spine requires: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Here, the Veteran has met the requirements for the next higher evaluation of 20 percent. In a October 2012 VA examination, a VA examiner wrote that the Veteran flare-ups impact the function the thoracolumbar spine in that they limit prolonged walking or standing, bending, twisting, and lifting or carrying. The VA examiner does not address to what degree these flare-up impact the Veteran's ranges of motion, but he stipulates that the Veteran's range of motion is 80 degrees and that painful motion begins at 80 degrees. Importantly, the examiner writes that the Veteran has function loss and/or impairment of the thoracolumbar spine and in addressing the question of additional limitation of range of motion of the thoracolumbar spine after repetitive use, indicates the contributing factors of disability below the VA examiner writes "less movement than normal." The examiner continues and when presented with the question on how this thoracolumbar spine affects the Veteran's occupation ability writes "...thoracic disability would prohibit work duties that entail heavy labor or rigorous physical exertion. However, his[sic] symptoms would not prohibit sedentary work activities, such as administrative or clerical." (Emphasis added) In effect, the VA examiner is implicitly provides objective findings on the symptoms associated with her thoracolumbar spine disability which include weakened movement, excess fatigability, and interference with weight bearing. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2014). As to how these provisions apply to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2014). Considering the foregoing, the examiners have indicated that the Veteran has additional functional loss due to the painful motion and other factors. Resolving reasonable doubt in his favor, the Board finds that the criteria for an initial 20 percent rating under the General Formula have been met. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5241. As discussed in the Introduction, the Veteran has indicated that she would be satisfied with a 20 percent evaluation for her thoracolumbar spine disability. Thus, discussion of higher evaluations and why they are not applicable is not necessary. ORDER Entitlement to an initial rating in excess of 30 percent for a cervical spine disability is denied. Entitlement to an initial rating of 20 percent for thoracolumbar spine disability is granted. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals for entitlement to initial increased rating in excess of 10 percent for migraine headaches. The Veteran has claimed since her last VA examination that her service-connected migraines to include headaches have worsened. The Veteran's last VA examination, to determine the status of her migraines to include headaches, was in October 2012. As a result, and given the time that has transpired since his last examination, the Board finds that a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). VA's General Counsel has similarly indicated that when a Veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). In particular the Board directs attention to a February 13, 2013 VA treatment note wherein a VA clinician noted that the Veteran's headaches have increased in severity requiring an increase in the Veteran's prescribed Topamax to 100mg and consideration to add amitriptyline or nortriptyline as back for headaches and sleep aid. Considering the foregoing, the Board finds a new VA examination to address the current severity of the Veteran's service connected migraines to include headaches is warranted. Accordingly, the case is REMANDED for the following action: 1. The Board notes that the Veteran appears to have continued to have medical care at the VA San Diego Health Care System. The claims file contains VA treatment records up until September 2013. The Board finds as the claim is being remanded that the VA treatment records from the VA San Diego Health Care System and affiliated outpatient clinics should be update accordingly. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examination. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. Then, schedule the Veteran for a VA examination to determine the nature and severity of her migraines. The claims folder (including a copy of this remand) should be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. A complete rationale for all opinions should be provided. In addressing the Veteran's current severity, the VA examiner's attention is drawn to her February 13, 2013 VA treatment records where a VA clinician in the neurology department remarks, "recommend increasing Topamax to 100mg BID for HA prophylaxis. Consider adding amitriptyline or nortriptyline as backup for HA prophylaxis and sleep aid." 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to an initial increased rating in excess of 10 percent for a migraines to include headaches. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs