Citation Nr: 0810482 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-34 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a rating in excess of 60 percent for a cervical spine disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to October 1994. This matter comes before the Board on appeal from a March 2005 decision of the Regional Office (RO) in Denver, Colorado, which confirmed and continued a 60 percent rating for a cervical spine disorder. The veteran appeared at a video conference hearing before the undersigned in November 2006. The hearing transcript is of record. In March 2007, the Board remanded the present matter for additional development. The case has been returned for further appellate review. In September 2002, the RO granted service connection for a cervical spine disorder, rated as 100 percent disabling effective August 29, 2001 and 60 percent disabling effective October 1, 2001. The veteran appealed the assigned effective date thereafter. He did not appeal any assigned rating, however. Thus, the claim in this regard became final. In November 2004, the RO received the veteran's informal claim seeking an increased rating, and as noted above in March 2005, it confirmed and continued the assigned 60 percent rating. Given the aforementioned procedural development, and despite any other previous characterizations, the issue before the Board is as stated on the title page of this decision, and the decision below is based on such. FINDING OF FACT The veteran does not have unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for the assignment of an rating in excess of 60 percent for a cervical spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2007). The RO received the veteran's claim in November 2004. Therefore, the Board must apply the rating criteria in effect at that time to determine whether the veteran warrants an increased rating. Under the criteria of Diagnostic Code 5237 and 5243, effective September 26, 2003, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or the 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 40 percent rating is warranted for forward flexion of the thoracolumbar to 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating and unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, a summary of which is as follows. First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Under the criteria in Diagnostic Code 5243, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease 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 38 C.F.R. § 4.25. This formula is discussed below. Under the criteria of Diagnostic Code 5243, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than 6 weeks, during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months, and a 10 percent rating is assigned with the incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, 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 neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the post appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). Legal Analysis The veteran contends that a higher rating is warranted for his cervical spine disorder. For the reasons stated below, the Board finds that an increased rating is not warranted. The veteran is currently rated at 60 percent for his cervical spine disorder. As discussed above, the only Diagnostic Code currently in effect that provides a rating in excess of 60 percent is Diagnostic Code 5237, which provides for a 100 percent rating when there is unfavorable ankylosis of the entire spine. Ankylosis means "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 92 (30th ed. 2003). The evidence does not show, nor has the veteran contended, that he has unfavorable ankylosis of the entire spine. VA examinations performed in connection with this appeal in February 2005 and December 2005 do not indicate that the veteran has unfavorable ankylosis of the entire spine. They have all indicated that the veteran has some range of motion. In February 2005, the veteran had cervical forward flexion of 35 degrees. The veteran had flexion with pain up to 42 degrees, and extension was 35 degrees, with pain the veteran had extension to 40 degrees. Lateral bending left and right was 40 degrees with some pain and discomfort, and lateral rotation to the left and right was 45 degrees with some pain. The veteran noted increased pain in the back of the neck and some impaired endurance when lifting five pound weights. There was no atrophy of the veteran's muscles, and deep tendon reflexes were equal on both biceps and triceps jerks. The sensory examination was intact. The examiner noted that relevant to DeLuca, the veteran lost 7 degrees of flexion due to pain and impaired endurance, with a 5 degree loss of extension due to pain and impaired endurance. Rotation left and right did not show any loss due to pain or impaired endurance. In December 2005, the veteran had range of flexion in his cervical spine to 28 degrees with pain at the back of the neck. Left lateral bending was 18 degrees with pain at the end of the motion. Right lateral bending was 20 degrees, with pain at the end of the motion. Extension was 28 degrees with pain on the right side and stiffness. Lateral rotation left was 20 degrees with stiffness. Lateral rotation right was 28 degrees with some stiffness. Even when considering the mandates of DeLuca v. Brown, 8 Vet. App. 202 (1995), there is no evidence of increased impairment due to weakness, fatigability, incoordination, or pain on movement so as to warrant the assignment of a higher rating. The Board has also considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that the record reflects that the veteran has experienced various neurological symptoms with his upper extremities, in particular his left arm. Private medical records suggest that these might be connected to his cervical spine disability. A separate rating for these symptoms is not warranted, however. Diagnostic Code 5293, as in effect in 2001, already accounts for this disability. See 38 C.F.R. § 4.72 (2001), Diagnostic Code 5293. Therefore, to assign a separate evaluation for any upper extremity disability would constitute pyramiding (or awarding benefits for the same disability twice), contrary to the provisions of 38 C.F.R. § 4.14 (2007). Therefore, a separate evaluation based on these symptoms is not warranted. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237. It is noted, however, that in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings." Nonetheless, as demonstrated above, the Board finds that "staged ratings" are not appropriate in this case, as there is no evidence that the veteran's disability has varied over time to warrant an increased rating. Otherwise, there is no evidence to show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Extraschedular Consideration The veteran has indicated that due to his injuries, he was forced to be hospitalized. The veteran has also indicated that he has been forced to choose between going to work while in pain or losing income. The record corroborates the veteran's statements. However, the evidence does not show that his disability necessitates frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The referral for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2007) is not warranted. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in January 2005 prior to the initial adjudication of the claim in March 2005. A letter was also sent in May 2005. The VCAA letter notified the veteran of VA's and of his responsibilities with relevance to his claim. The letter informed the veteran that he should submit any additional evidence that is not currently of record. The Board finds that VA has satisfied the four elements of Pelegrini, supra. To whatever extent the decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. The appellant was sent a letter compliant with Dingess in March 2006 and the claim was subsequently readjudicated in a November 2007 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The appellant has not been prejudiced. The record establishes that the appellant has been afforded a meaningful opportunity to participate in the adjudication of his claim. With regard to the November 2007 Supplemental Statement of the Case, the Board observes that although the address was otherwise correct, the abbreviation for the state was CA (for California) instead of the proper abbreviation CO (for Colorado). Both the ZIP code, street address, and town were correct. There is no indication in the record that the November 2007 Supplemental Statement of the Case was returned to sender. Therefore, the Board will utilize the presumption of regularity and finds that despite the mistake in the state abbreviation, the veteran's Supplemental Statement of the Case was successfully delivered. See Ashley v. Derwinski, 2 Vets. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926) ("Presumption of regularity" supports the official acts of public officers, to include proper mailing of notification of decisions) and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. Here, the VCAA duty to notify has not been satisfied with respect to the requirements set forth by Vazquez-Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, supra. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the veteran has shown actual knowledge of the information necessary to support his claim. The veteran understands that medical evidence would assist in supporting his claim; he has assisted the RO in obtaining numerous medical records pertaining to his claim. Additionally, the veteran has submitted payroll records, indicating that he understands that exceptional absence from work could justify an increased rating. The veteran has thus shown actual knowledge. VA must also 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 received the veteran's service medical records and private medical records. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran has been provided with multiple examinations by VA in February 2005 and December 2005. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) ORDER Entitlement to a rating in excess of 60 percent for a cervical spine disorder is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs