Citation Nr: 0811712 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-17 564A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent disabling for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 between September 20, 2004, and March 21, 2006. 2. Entitlement to an evaluation in excess of 10 percent disabling for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 on or after March 21, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to March 1988 and from July 1991 to December 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 (herein after cervical spine disability). The veteran filed a notice of disagreement (NOD) with that decision in May 2005. The appeal was subsequently transferred to the RO in Lincoln, Nebraska, and is now before the Board for consideration. In November 2007, the veteran presented testimony by the use of video conferencing equipment at a hearing conducted at the Lincoln RO before a Veterans Law Judge (VLJ) sitting in Washington, DC. A transcript of this hearing is in the veteran's claims folder. The record reflects that the veteran submitted additional evidence that had not been reviewed by the RO. By a November 2007 statement, the veteran related that he was waiving the right to have this additional evidence reviewed by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The Board notes the veteran's contentions made during his November 2007 hearing that he had nerve damage in his left arm and left hand and appears to ask for compensation for left upper extremity radiculopathy. However, the Board notes that in a May 2006 RO decision, the veteran was granted service connection for left upper extremity radiculopathy with a 10 percent evaluation effective March 20, 2006. As a timely NOD with that decision is not of record, the issue is not part of the present appeal. To the extent that the veteran is contending that his service-connected left upper extremity radiculopathy has gotten worse since the grant of service connection, the Board refers this issue to the RO for an necessary development. The Board also acknowledges the veteran's November 2007 statement in which he asked for a temporary evaluation of 100 percent. The Board also refers this issue to the RO for any necessary development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Between September 20, 2004, and March 21, 2006, the veteran's herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 was not productive of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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. 3. Effective March 21, 2006, the veteran's herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 was productive of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis but was not productive of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. Between September 20, 2004, and March 21, 2006, the criteria for an initial evaluation in excess of 10 percent for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 were not met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5243 (2007). 2. Effective March 21, 2006, the criteria for a 20 percent evaluation, and no higher, were met for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 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, 22 Vet. App. 37. Nevertheless, in this case, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA medical records and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was also afforded VA examinations in April 2005, August 2006, and May 2007in connection with his claim for a higher evaluation. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them a SOC and SSOCs, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. To the extent that the veteran testified during his November 2007 hearing that his service-connected cervical spine disability increased in severity since his last VA examination in May 2007, the Board concludes that a remand for another examination in not necessary. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). However, as will be discussed more thoroughly below, private treatment records dated in November 2007 at the time of the veteran's November 2007 hearing do not indicate that there has been a material change in the severity of the veteran's service-connected disability since he was last examined in May 2007. 38 C.F.R. § 3.327(a). As such, a remand for another VA examination is not necessary as the record contains adequate evidence on which to rate the veteran. LAW AND ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). However, there is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown--that the present level of the veteran's disability is the primary concern in an claim for an increased rating and that past medical reports should not be given precedence over current medical findings--does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Instead, where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent disability evaluation is contemplated when there is 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 30 percent evaluation is for assignment when there is forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Further, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 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 normal combined range of motion 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). See also 38 C.F.R. § 4.71a, Plate V. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 1. Entitlement to an initial evaluation in excess of 10 percent disabling for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 between September 20, 2004, and March 21, 2006. In considering the evidence of record under the laws and regulations as outlined above, the Board finds that the veteran is not entitled to an initial evaluation in excess of 10 percent disabling between September 20, 2004, and March 21, 2006. The evidence of record during that period did not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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. In this regard, during his April 2005 VA examination, the veteran complained of daily pain, stiffness, and weakness in his neck. He reported flare-ups but no functional impairment. The veteran denied weight loss, fever, malaise, dizziness, bladder, or bowel complaints and used no crutches, braces, canes, or special shoes. Further, he denied any incapacitating episodes or bedrest prescribed by a physician. The veteran could walk distances and was not unsteady. Importantly, the combined range of motion of the cervical spine was 310 degrees with pain. Moreover, there was no weakness, fatigability, or incoordination, or decreased range of motion after repetitive use. 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca. The veteran reported no functional impairment with chores. Further, there was no spasm or weakness but some tenderness and pain after repetitive use. Although a January 2006 private treatment entry from A.L.M. indicated that the veteran had daily problems with muscle spasm, the Board finds, the Board finds it significant that the veteran did not demonstrate limited motion that met the criteria for 10 percent rating and there was no showing of an abnormal gait or abnormal spinal contour. Therefore, when considering the evidence of record as a whole during the aforementioned period, that the preponderance of the evidence did not more nearly approximate the criteria for a 10 percent rating. As such, entitlement to an evaluation in excess of 10 percent disabling prior to March 21, 2006, is denied. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. 2. Entitlement to an evaluation in excess of 10 percent disabling for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 on or after to March 21, 2006. In considering the evidence of record under the laws and regulations as outlined above, the Board finds that the veteran is entitled to a 20 percent rating, and no higher, effective March 21, 2006. In this regard, the evidence showed symptoms consistent with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, but it did not show forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. In this regard, a March 21, 2006, private MRI from Dr. J.Q.F. revealed cervical kyphosis at C6- C7 with slightly progressive mild to moderate cervical spondylosis and a July 2006 MRI from Dr. I.F. reflected a straightening of the natural cervical lordosis which was usually seen with pain or muscle spasm. During the August 2006 VA examination, the veteran reported stiffness, spasms, pain, fatigue, weakness, cramping, and flare-ups. Upon examination, the veteran had normal posture, a symmetric appearance, normal gait, no kyphosis but mild reverse lordosis. There was no atrophy or weakness. The combined range of motion of the cervical spine was 200 degrees with pain. Significantly, there was no cervical spine ankylosis and forward flexion was to 45 degrees with pain beginning at 25 degrees. Occupational effects were identified as decreased mobility, problems with lifting and carrying, pain and increased absenteeism. Although there was additional limitation of motion due to pain after repetitive use and moderate spasm, mild guarding, moderate pain with motion, and mild tenderness, the Board finds that these symptoms are contemplated in a 20 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca. During the May 2007 VA examination, the veteran denied incapacitating episodes or weakness. The veteran reported no flare ups, fatigue, decreased motion, stiffness, weakness, or spasm but the veteran did report pain. There were no incapacitating episodes. There was no spasm, atrophy, guarding, weakness, spasm but there was pain with motion and tenderness. There was no abnormal gait or abnormal spine contour. There was no gibbus, kyphosis, list, scoliosis, or reverse lordosis. The veteran had decreased sensation to light touch in the third and fourth digits of his left hand with intact motor strength. The veteran's combined cervical range of motion was 330 degrees with pain but no additional loss of motion after repetitive use. Although the veteran contended that he had gotten worse during his November 2007 hearing, the Board finds that there is sufficient evidence on which to rate his current state of disability. In this regard, a private treatment entry from J.S. dated the day after the veteran's hearing reflected that he was able to work full time with little or no spasm. Although cervical range of motion scores were given, they only reflected the range of motion achieved without pain. His posture reflected bilateral rounded shoulders and guarded upper extremity and cervical mobility. As such, forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine was not shown. Therefore, the preponderance of the evidence more nearly approximates the criteria for a 20 percent rating on and after March 21, 2006, and no higher. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. Additionally, the Board further finds that a separate disability rating is not warranted because the objective medical evidence does not demonstrate that the veteran suffers from a separate neurological disability distinct from his service-connected herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The medical evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. Further, the Board notes that the veteran is separately service-connected for left upper extremity radiculopathy at 10 percent disabling and is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515, which is not on appeal and therefore is not being considered. Further, the Board notes that separate evaluations for the same symptomatology would constitute pyramiding and would not be allowed. See 38 C.F.R. § 4.14. Moreover, a November 2007 private neurological examination from Dr. G.L.P., M.D., indicated that left ulnar sensory, left radial sensory, and left radial motor were intact. As such, a separate rating under Diagnostic Codes 8514 and 8516 are not for application. 38 C.F.R. § 4.124a. In addition, the veteran denied bowel or bladder incontinence during his VA examinations. Therefore, the Board concludes that the veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. 125,129-132. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). In this case, however, there has been no showing that the veteran's service-connected herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise render impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. Although the veteran is not currently employed, there has been no showing that impact of the veteran's cervical spine disability has caused interference with his employment beyond that already contemplated by the rating criteria. In fact, the November 2007 record from J.S. dated the day after the veteran's hearing reflected that the veteran was able to work full time. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial evaluation in excess of 10 percent disabling for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 between September 20, 2004, and March 21, 2006, is denied. Entitlement to a 20 percent disabling evaluation, and no higher, for a herniated nucleus pulposis C6-7 with narrowing of C3-4 and C4-5 on or after March 21, 2006, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs