Citation Nr: 0814029	
Decision Date: 04/29/08    Archive Date: 05/08/08

DOCKET NO.  05-37 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to an increased evaluation for degenerative disc 
disease, cervical spine, currently evaluated as 30 percent 
disabling.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. M. Wagman, Associate Counsel


INTRODUCTION

The veteran had active military service from March 1974 to 
February 1984 and January 1986 to June 1995.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2005 rating decision by the Jackson, 
Mississippi Regional Office (RO) of the Department of 
Veterans Affairs (VA) that increased the veteran's service-
connected degenerative disc disease, cervical spine, from 20 
percent disabling to 30 percent disabling.  The veteran 
claims his disability his more severe than the rating 
assigned reflects.

The Board also notes that while the veteran withdrew his 
request for a Board hearing, he did appear before a Decision 
Review officer for an RO hearing in October 2005.   


FINDING OF FACT

The veteran's cervical spine disability has been primarily 
manifested by pain on use; 10 degrees flexion; no evidence of 
unfavorable ankylosis of the entire cervical spine or 
incapacitating episodes having a total duration of at least 6 
weeks during the past 12 months and no neurological 
abnormalities.


CONCLUSION OF LAW

The schedular criteria for an evaluation in excess of 30 
percent for degenerative disc disease, cervical spine, are 
not met.  38 U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. 
Part 4, Diagnostic Codes 5003, 5237, 5243 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any 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); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from 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; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

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. at 39. 

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  To this effect, the Board also notes 
that the veteran signed a statement in December 2004 
specifically acknowledging that VA had notified him about the 
evidence or information needed to substantiate his claim as 
well as the kinds of information and evidence it will try to 
obtain and what the veteran was required to provide.  He 
reiterated that he had no additional medical evidence to 
submit and that he desired his case to be decided as soon as 
possible.

The RO has obtained VA outpatient treatment records from the 
Jackson, Mississippi VA Medical Center (VAMC) and he was 
afforded a VA medical examination in April 2005.  The veteran 
was also afforded an October 2005 hearing before the RO.  
While the veteran did identify outstanding private medical 
records that have yet to be associated with the claims file, 
for the reasons set forth below the Board finds that is 
unnecessary to obtain such evidence for a fair adjudication 
of the claim.  The veteran nor his representative has 
otherwise identified, and the record does not further 
indicate, any additional existing evidence that is necessary 
for a fair adjudication of the claim that has not been 
obtained.  Hence, no further notice or assistance to the 
veteran is required to fulfill VA's duty to assist the 
veteran in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Merits of the Claim

Preliminarily, the Board notes that following his claim for 
an increased evaluation in November 2004, a May 2005 Rating 
Decision increased the veteran's evaluation from 20 percent 
to 30 percent disabling.

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities, which is based on the 
average impairment of earning capacity. Separate diagnostic 
codes identify the various disabilities. 38 U.S.C.A. § 1155 
(2002); 38 C.F.R. § 4.1 (2007).

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 (2007).  Any reasonable doubt 
regarding the degree of disability will be resolved in favor 
of the claimant.  38 C.F.R. § 4.3 (2007).

Functional loss, supported by adequate pathology and 
evidenced by visible behavior of the veteran undertaking the 
motion, is recognized as resulting in disability.  See Deuce 
v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 
4.45 (2007).

While the veteran's entire history is reviewed when assigning 
a disability evaluation, 38 C.F.R. § 4.1, where service 
connection 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.  Francisco v. Brown, 7 
Vet. App. 55 (1994).  A recent decision of the United States 
Court of Appeals for Veterans Claims (Court) has held that in 
determining the present level of a disability for any 
increased evaluation claim, the Board must consider the 
application of staged ratings.  See Hart v. Mansfield, 21 
Vet. App. 505 (2007).  In other words, where the evidence 
contains factual findings that demonstrate distinct time 
periods in which the service-connected disability exhibited 
diverse symptoms meeting the criteria for different ratings 
during the course of the appeal, the assignment of staged 
ratings would be necessary.

Although the Board has an obligation to provide adequate 
reasons and bases supporting this decision, there is no 
requirement that the evidence submitted by the veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).  The record contains a VA spine 
examination that was conducted in April 2005 as well as VA 
outpatient records that date August 2003 through November 
2005 

VA regulations provide that arthritis due to trauma, 
substantiated by X-ray findings, shall be rated as 
degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 
5010 (2007).  38 C.F.R. § 4.71a, Diagnostic Code 5003, 
pertaining to degenerative arthritis (degenerative joint 
disease) provide that degenerative arthritis established by 
X-ray findings will be rated on the basis of limitation of 
motion under the appropriate diagnostic codes for the 
specific joint or joints involved.

The regulations also provide the following rating criteria: A 
30 percent evaluation requires forward flexion of the 
cervical spine of 15 degrees or less or favorable ankylosis 
of the entire cervical spine; a 40 percent evaluation for 
favorable ankylosis of the entire thoracolumbar spine or 
forward flexion of the thoracolumbar spine of 30 degrees or 
less; a 50 percent evaluation is warranted for unfavorable 
ankylosis of the entire thoracolumbar spine; a 100 percent 
evaluation will be assigned for unfavorable ankylosis of the 
entire spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237 
(2007).

Note (1): Evaluate any associated objective neurological 
abnormalities, including, but not limited to, bowel or 
bladder impairment, separately, under an appropriate 
diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, 
normal forward flexion of the thoracolumbar spine is zero to 
90 degrees, extension is zero to 30 degrees, and left and 
right lateral rotation is zero to 30 degrees.

Note (5): 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 of dysphagia; atlantoaxial or 
cervical subluxation or dislocation; or neurological symptoms 
due to nerve root stretching. Fixation of a spinal segment in 
neutral position (zero degrees) always represents favorable 
ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar 
and cervical spine segments, except when there is unfavorable 
ankylosis of both segments, which will be rated as a single 
disability.

In regard to intervertebral disc syndrome, the Diagnostic 
Code 5243 provides that intervertebral disc syndrome should 
be evaluated either on the total duration of incapacitating 
episodes over the past 12 months or under the General Rating 
Formula for Diseases and Injuries of the spine, whichever 
method results in the higher evaluation.  An evaluation of 40 
percent is warranted for intervertebral disc syndrome with 
incapacitating episodes having a total duration of at least 4 
weeks but less than 6 weeks during the past 12 months.  

The veteran is claiming that the 30 percent evaluation 
assigned to his cervical degenerative disc disease does not 
accurately reflect the severity of his condition.  At his 
October 2005 RO hearing the veteran testified that he is able 
to work because his job does not involve physical labor. The 
veteran essentially contended that his pain is so severe and 
the limitation on his physical activities, such as doing yard 
work or driving for more than a short time are such that he 
should be afforded a higher rating.  While the veteran 
testified that he does see a private doctor, his family 
physician, and that he had seen by a private neurosurgeon, 
the veteran otherwise specifically testified that he was not 
aware of any evidence to show that he has unfavorable 
ankylosis of the cervical spine.  The veteran also 
specifically denied in his testimony that he has suffered 
from incapacitating episodes of intervertebral disc syndrome 
having a total duration of at least 4 weeks but less than 6 
weeks during the past 12 months.  While some of the private 
medical records identified have not be associated with the 
claims file, in view of the fact that the veteran's testimony 
indicates that such records do not contain evidence that the 
veteran meets the criteria for a schedular increase, the 
Board finds that is unnecessary to obtain such evidence for a 
fair adjudication of the claim.

The veteran was afforded a VA examination in April 2005 to 
determine the current level of his disability during which he 
reported to the examining physician that he is pain on a 
daily basis (a 3-4/10 in intensity with occasional flare-ups 
that increase to 6-7/10 in intensity).  The examination 
report shows the veteran reported his condition is aggravated 
with walking and that he is unable to do normal activities of 
daily living including yard work.  Pain is alleviated with 
rest and medication.  The veteran denied bowel, bladder or 
erectile dysfunction complaints.  He indicated a 
numbness/tingling in left lower and upper extremities.  He 
did not describe any incapacitating episodes in the last 12 
months.

On physical examination, the examiner recorded normal posture 
and normal gait.  The veteran was noted to have mild 
tenderness in his cervical spine.  Range-of-motion findings 
were as follows:  10 degrees flexion, 20 degrees extension, 
10 degrees bilateral lateral flexion, 30 bilateral lateral 
rotation (the left side greater than the right).  The 
examiner noted muscle spasms, pain and fatigability with 
movement.  In addressing De Luca provisions, the examiner 
specifically stated the veteran's range of motion is 
decreased significantly with pain and repetition.   

Motor examination revealed 4+/5 in the left upper extremity; 
otherwise, motor strength was normal throughout.  Despite the 
veteran's complaints of numbness and tingling in the left 
upper and lower extremities, the examiner remarked the 
veteran's sensory examination was normal.  Reflexes were 
recorded as 2+. 

The Board finds that the veteran's cervical degenerative disc 
disease does not exceed the 30 percent criteria of Diagnostic 
Code 5237.  There is no medical evidence in the record, 
suggesting that the veteran had unfavorable ankylosis of the 
entire cervical spine.  Plus, there is absolutely no 
evidence, and the veteran does not contend, that he has 
ankylosis of any segment of his spine, to include the 
cervical segment, and so a higher rating is not warranted 
based on range of motion.

The veteran has reported that he experiences constant pain 
involving his neck. Taking into consideration the veteran's 
complaints regarding his discomfort and the VA examiner's 
remarks concerning functional loss, the Board finds that the 
functional impairment cause by the pain as contemplated in 
the De Luca case is included in the current 30 percent 
rating.

As noted above, the criteria of Diagnostic 5243 evaluate 
intervertebral disc syndrome on either the total duration of 
incapacitating episodes over the past 12 months or under the 
General Rating Formula for Diseases and Injuries of the 
spine, whichever method results in the higher evaluation.  38 
C.F.R. § 4.71a, Diagnostic Code 5243 (2007).

In considering Diagnostic Code 5243, there is no medical 
evidence that any physician has prescribed bed rest for the 
veteran's cervical disability during the relevant time 
period, and so his back disability may not be evaluated on 
the duration of incapacitating episodes.  Indeed, the veteran 
specifically denied in his testimony that he has suffered 
from incapacitating episodes of intervertebral disc syndrome 
having a total duration of at least 4 weeks but less than 6 
weeks during the past 12 months.

In regard to neurological manifestations, although the 
veteran has complained of tingling and numbness in the left 
lower and upper extremities, the veteran's sensory and motor 
examination was normal.  As the reported symptoms do not rise 
to the level of compensable neuritis or neuralgia (mild, 
incomplete) under 38 C.F.R. § 4.124a, the neurological 
manifestations do not afford the veteran a basis for a 
separate rating thereunder. 

Based upon the guidance of the Court in Hart, the Board has 
considered whether a staged rating is appropriate.  See Hart, 
21 Vet. App. at 509.  However, in the present case, the 
veteran's symptoms remained constant throughout the course of 
the period on appeal and as such staged ratings are not 
warranted.  Should the veteran's disability picture change in 
the future, he may be assigned a higher evaluation.  See 38 
C.F.R. § 4.1 (2007).  At present, however, there is no basis 
for such an evaluation.

The Board has also considered whether the case should be 
referred to the Director of the VA Compensation and Pension 
Service for extra-schedular consideration under 38 C.F.R. § 
3.321(b)(1).  The record reflects that the veteran has not 
required frequent hospitalizations for the disability or that 
there has been marked interference with employment, and that 
the manifestations of the disability are otherwise 
contemplated by the schedular criteria.  In sum, there is no 
indication in the record that the average industrial 
impairment from the disability would be in excess of that 
contemplated by the assigned rating.  Therefore, the Board 
has concluded that referral of this case for extra-schedular 
consideration is not warranted.

Because the Board finds that the preponderance of the 
evidence establishes that the veteran's service-connected 
cervical degenerative disc disease does not meet the criteria 
for a rating greater than 30 percent, the reasonable doubt 
doctrine is not for application. See Gilbert v. Derwinski, 1 
Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. 
Cir. 2001).


ORDER

Entitlement to an evaluation in excess of 30 percent for 
degenerative disc disease of the cervical spine is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs