Citation Nr: 0812642 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 07-03 340 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for the service-connected cervical strain with cervicobrachial pain, claimed as neck and shoulder pain. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from June 1982 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 RO rating decision. The veteran testified before the undersigned Veterans Law Judge in August 2007 at the RO. At his hearing the veteran submitted private medical evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. The Board notes that, at the recent hearing, the veteran testified about radiculopathy secondary to his service- connected cervical strain with cervicobrachial pain. Therefore, the issue of increased compensation based on radiculopathy secondary to his cervical strain with cervicobrachial pain is referred to the RO for further development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The service-connected cervical strain is shown to be productive of a disability picture that more nearly approximates that of restriction of forward flexion to less than 30 with pain and repetitive movement and demonstrated muscle spasm with guarding likely during flareups. CONCLUSION OF LAW The criteria for an increased rating of 20 percent for the service-connected cervical strain are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5237, 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In January 2006, prior to the rating decision on appeal, the RO sent the veteran a letter advising him that in order to support a claim for higher evaluation for a service-connected disability, the evidence must show that the disability had become worse; the veteran had an opportunity to respond prior to the issuance of the March 2006 rating decision. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for increased rating and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the January 2006 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The January 2006 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support a claim for increased rating and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2007). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the December 2006 Statement of the Case (SOC), which suffices for Dingess. The Board notes that the veteran was not notified of the information regarding the effective date that may be assigned; however, the Board's decision herein assigning a higher rating is effective from the date of the claim for increase. Therefore, there is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. With regard to the increased evaluation claim included in this decision, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that the January 2006 VCAA letter was in substantial compliance with the first and fourth requirements of Vazquez-Flores to the extent that the veteran was notified that he needed to submit evidence of worsening that could include specific medical evidence, as well as lay evidence from other individuals. The Board is aware that the January 2006 VCAA letter did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores. However, the veteran's February 2006 VA examination involved studies that paralleled the relevant diagnostic criteria. These studies, as well as the veteran's access to his VA examination reports (indicated in his representative's February 2007 statement, as the claims file had been reviewed by the representative), reflect that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. Moreover, as the veteran discussed his service-connected disability in terms of relevant symptomatology in his testimony and described the functional effects of his disability on his everyday life during his examination, the Board is satisfied that he had actual knowledge of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Finally, the Board notes that the initial notification of the applicable rating criteria in the December 2006 SOC was discussed at the veteran's hearing, representing VA action that served to render any pre-adjudicatory notice error non- prejudicial. Vazquez-Flores, slip op. at 9. For all of these reasons, the Board finds that any notice errors with regard to the second and third requirements of Vazquez-Flores are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d at 889. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran was afforded a VA examination in February 2006. The veteran has also been afforded a hearing before the Board in August 2007. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for increased ratings for the service-connected disability of cervical strain. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A January 2001 RO rating decision granted service connection for cervical strain and an initial 10 percent disability rating. In December 2005, the veteran filed a claim for an increased rating for his service-connected cervical strain and the March 2006 RO rating decision continued the veteran's 10 percent disability rating; however, the RO evaluated him under the new criteria for his service-connected cervical strain. Prior to the veteran's claim for an increased rating, the criteria for evaluating spine disorders, including those involving the cervical spine, were been substantially revised. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. For the period beginning on September 23, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 10 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent evaluation contemplates intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. The rating criteria revision effective on September 26, 2003, further incorporates the new criteria for evaluating intervertebral disc syndrome. 68 Fed. Reg. 51454-51458 (August 27, 2003). Under the recent revisions (Diagnostic Codes 5235-5242), a 10 percent evaluation is in order for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 evaluation is assigned in cases of forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is in order for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Also, under these revisions, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the cervical spine encompasses 45 degrees of flexion, extension, and bilateral lateral flexion and 80 degrees of rotation. The normal combined range of motion of the cervical spine is 340 degrees. The Board notes that VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca, 8 Vet. App. 202 (1995). Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40. At the veteran's February 2006 VA examination, he stated he had a dull ache in his cervical spine with radiation to the right shoulder and interscapular space. His flare-ups were moderate to severe and were treated with Tylenol and heat. He did not use any assistive devices. Due to stiffness he missed 2 days of work in a 12 period; however, he had no incapacitating episodes. The VA examiner noted paravertebral muscle spasticity especially on the right side with increased tenacity of the scalene muscles. With compression of these muscles and the paravertebrals at the base of the neck, there was pain with radiation to the interscapular space. The range of motion for flexion was to 45 degrees, extension was to 30 degrees, right side rotation was 60 degrees, his left side rotation was 80 degrees, his right side bending was 45 degrees, and his left side bending was 45 degrees. In addition, the veteran had no limitation or restrictions on his daily activities. On repetitive action of flexion/extension of the neck against 10 pounds of resistance and against gravity was limited by pain, fatigue weakness and lack of endurance but there was no decrease in the range of motion. A private chiropractor stated in November 2006 and August 2007 that he treated the veteran for his cervical condition and that improvement was made; however, structural changes were still present and exacerbation would likely occur. The veteran testified at the recent hearing that he had arthritis in his cervical spine and pain that ran from his neck into his arms. The Board finds, after reviewing the VA examination report, his private chiropractor's statements, and his testimony that the service-connected cervical strain is shown to currently produce a disability picture that more closely resembles the criteria warranting an increased rating of 20 percent, but not higher. The medical evidence shows forward flexion of the cervical spine that is likely reduced to less than 30 degrees with pain and during repetitive movement with muscle spasm and some guarding when he experiences flareups. In addition, there is no medical evidence that the veteran experiences any incapacitating episodes associated with intervertebral disc syndrome or separately ratable symptoms due to radiculopathy. The service-connected cervical strain does not show additional limitation of function due to fatigue, weakness, pain and lack of endurance. The currently assigned 20 percent rating contemplates the functional loss under DeLuca. Considering the medical evidence of record for the period of the appeal, the increased rating of 20 percent for the service-connected cervical strain is assignable from the date of claim. ORDER An increased rating of 20 percent for the service-connected cervical strain with cervicobrachial pain is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs