Citation Nr: 0916393	
Decision Date: 05/01/09    Archive Date: 05/12/09

DOCKET NO.  93-12 325	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUES

1.  Entitlement to service connection for depression, claimed 
as secondary to service-connected cervical myositis with disc 
disease, status post C5-6 interbody fusion.

2.  Entitlement to a total disability rating based on 
individual unemployability due to service-connected 
disability (TDIU).

3.  Entitlement to an effective date earlier than December 1, 
1997 for the assignment of a 60 percent disability rating for 
service-connected cervical myositis with disc disease, status 
post C5-6 interbody fusion.
 


REPRESENTATION

Veteran represented by:	Sean A. Ravin, Esq.




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Bush, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from April 2005 and October 2006 rating 
decisions issued by the Department of Veterans Affairs (VA) 
Regional Office (RO) in Cleveland, Ohio.

Procedural history

The earlier effective date claim

The Veteran served on active duty in the United States Army 
from September 1979 to June 1982.

Service connection for a cervical spine disability was 
granted in a September 1982 rating decision.

The Veteran filed a claim for an increased disability rating 
on August 10, 1992.  
A January 1993 rating decision increased the Veteran's 
cervical spine disability to 20 percent disabling effective 
August 6, 1992, the date of a private medical record 
evidencing increased symptoms.  The Veteran perfected an 
appeal as to the disability rating assigned.



After numerous remands and an appeal to the United States 
Court of Appeals for Veterans Claims (the Court), the Board 
eventually awarded a 60 percent disability rating for the 
service-connected cervical spine disability in a May 2006 
decision.  An October 2006 rating decision implemented the 
Board's findings, assigning a 60 percent rating effective 
December 1, 1997.  The Veteran indicated his disagreement 
with the effective date assigned.

The depression and TDIU claims

In July 1999, the Veteran filed a claim of entitlement to 
service connection for depression as secondary to the 
service-connected cervical spine disability.  
The claim was denied by the RO in a May 2002 rating decision, 
which the Veteran did not appeal.

In May 2003, the Veteran requested to reopen the previously-
denied claim for depression; he also sought TDIU.  These 
claims were denied in an April 2005 rating decision, and the 
Veteran perfected an appeal of that decision.  

In May 2006, the Board remanded the claims for additional 
evidentiary and procedural development.  In August 2008, the 
Board requested an opinion from an independent medical expert 
(IME) as to the claim for depression.  See 38 U.S.C.A. § 7109 
(West 2002); 38 C.F.R. § 20.901 (2008).  The opinion has been 
provided and it is associated with the Veteran's VA claims 
folder.


FINDINGS OF FACT

1.  The competent medical evidence of record supports a 
finding that a relationship exists between the Veteran's 
currently diagnosed depression and his service-connected 
cervical spine disability.  

2.  The competent medical evidence of record supports a 
finding that the Veteran's service-connected cervical spine 
disability and depression render him unable to secure or 
follow a substantially gainful occupation.

3.  An unappealed June 1989 rating decision assigned a 10 
percent disability rating for the service-connected cervical 
spine disability.

4.  On August 10, 1992, the RO received the Veteran's claim 
for an increased rating for the service-connected cervical 
spine disability.  

5.  The RO subsequently granted an increased disability 
rating of 60 percent for the cervical spine disability, 
effective December 1, 1997.

6.  The competent medical evidence of record indicates that 
cervical spine symptomology consistent with the assignment of 
a 60 percent rating was initiall identified on December 1, 
1997.


CONCLUSIONS OF LAW

1.  Service connection for depression is warranted.  
38 C.F.R. § 3.310 (2008).

2.  The criteria for a total disability rating based on 
individual unemployability due to service-connected 
disability have been met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2008).

3.  The requirements for an effective date earlier than 
December 1, 1997 for the assignment of a 60 percent 
disability rating for service-connected cervical spine 
disability have not been met.  38 U.S.C.A. §5110 (West 2002); 
38 C.F.R. 
§ 3.400 (o) (2008).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks service connection for depression as 
secondary to his service-connected cervical spine disability 
as well as entitlement to TDIU.  He further contends that an 
effective date earlier than December 1, 1997 is warranted for 
the assignment of a 60 percent disability rating for the 
service-connected cervical myositis with disc disease, status 
post C5-6 interbody fusion.  

In the interest of clarity, the Board will first discuss 
certain preliminary matters. The issues on appeal will then 
be analyzed and a decision rendered.

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits. The VCAA also redefines 
the obligations of VA with respect to its statutory duty to 
assist claimants in the development of their claims.  See 38 
U.S.C.A. §§ 5103, 5103A (West 2002).

The Board is granting the Veteran's claims of entitlement to 
service connection for depression and TDIU.  Accordingly, any 
failure to provide complete notice or assistance under the 
VCAA in the development of these two claims has been rendered 
moot and no further discussion is therefore necessary.

With respect to the earlier effective date claim, the Board 
finds that no VCAA notice is necessary.  Specifically, in 
Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay 
v. Principi, 15 Vet. App. 165 (2001), the Court held that the 
VCAA has no effect on an appeal where the law, and not the 
underlying facts or development of the facts, is dispositive 
of the matter.  The Board finds that such is the case as to 
the issue here on appeal.  The facts in this case, which 
involves the assignment of an effective date, are not in 
dispute.  Application of pertinent provisions of the law and 
regulations will determine the outcome.  No amount of 
additional evidentiary development would change the outcome 
of this case; therefore no VCAA notice is necessary.  See 
DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA 
notice not required where there is no reasonable possibility 
that additional development will aid the claimant].

Specifically, the Court has held that a Veteran claiming 
entitlement to an earlier effective date is not prejudiced by 
failure to provide him with VCAA notice of the laws and 
regulations governing effective dates, if, based on the facts 
of the case, entitlement to an earlier effective date is not 
shown as a matter of law. 
See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).

In addition, general due process concerns have been satisfied 
in connection with this appeal.  See 38 C.F.R. § 3.103 
(2008).  The Veteran has been accorded ample opportunity to 
present evidence and argument in support of his appeal.  He 
has retained the services of private counsel, who has 
presented argument on his behalf.  As noted in the 
Introduction, he testified before the undersigned in December 
2005.

1.  Entitlement to service connection for depression, claimed 
as secondary to service-connected cervical myositis with disc 
disease, status post C5-6 interbody fusion.

Relevant law and regulations

Secondary service connection

Service connection may be granted for a disability that is 
proximately due to, the result of, or aggravated by a 
service-connected disability.  See 38 C.F.R. § 3.310(a) 
(2008); see also Harder v. Brown, 5 Vet. App. 183, 187 
(1993).  Additional disability resulting from the aggravation 
of a non-service-connected condition by a service-connected 
condition is also compensable under 38 C.F.R. § 3.310(a).  
See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In order to establish service connection for a claimed 
disability on a secondary basis, there must be (1) medical 
evidence of a current disability; (2) a service-connected 
disability; and (3) medical evidence of a nexus between the 
service-connected disease or injury and the current 
disability.  See Wallin v. West, 11 Vet. App. 509, 512 
(1998).

Standard of review

In general, after the evidence has been assembled, it is the 
Board's responsibility to evaluate the entire record.  See 38 
U.S.C.A. § 7104(a) (West 2002).  When there is an approximate 
balance of evidence regarding the merits of an issue material 
to the determination of the matter, the benefit of the doubt 
in resolving each such issue shall be given to the claimant.  
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
stated that "a veteran need only demonstrate that there is 
an 'approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  See 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.

Analysis

As noted above, in order to establish service connection for 
a claimed disability on a secondary basis, there must be (1) 
medical evidence of a current disability; (2) a service-
connected disability; and (3) medical evidence of a nexus 
between the service-connected disease or injury and the 
current disability.  See Wallin, supra.

With respect to Wallin element (1), medical evidence of a 
current disability, there are numerous diagnoses of 
depression of record.

With respect to Wallin element (2), a service-connected 
disability, the Veteran is currently service connected for 
cervical myositis with disc disease, status post C5-6 
interbody fusion.  Wallin element (2) is accordingly 
satisfied.  [The Board observes in passing that the Veteran 
is also service-connected for frostbite residuals of the 
hands; however, his contentions concern only the cervical 
spine disability].

With respect to Wallin element (3), the Board sought an IME 
opinion to address the potential relationship between the 
Veteran's depression and his cervical spine disability.  See 
38 U.S.C.A. § 7109 (West 2002).  The IME opined that "it is 
as likely as not that the Veteran's depression was caused at 
least in part by the service-connected cervical spine 
disorder."  This finding is consistent with the October 1999 
and November 2004 VA examination reports and the October 2002 
statement of E.C.L., M.D.  Wallin element (3) is therefore 
also satisfied.

Because all three elements have been met, a grant of the 
benefit sought on appeal is warranted.

2.  Entitlement to TDIU.

Relevant law and regulations

It is the established policy of VA that all veterans who are 
unable to secure and follow a substantially gainful 
occupation by reason of service-connected disabilities shall 
be rated totally disabled.  See 38 C.F.R. § 4.16 (2008).  A 
finding of total disability is appropriate "when there is 
present any impairment of mind or body which is sufficient to 
render it impossible for the average person to follow a 
substantially gainful occupation."  See 38 C.F.R. §§ 
3.340(a)(1), 4.15 (2008).

"Substantially gainful employment" is that employment 
"which is ordinarily followed by the nondisabled to earn 
their livelihood with earnings common to the particular 
occupation in the community where the veteran resides."  
Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal 
employment shall not be considered substantially gainful 
employment."  38 C.F.R. § 4.16(a) (2008).
The Court noted the following standard announced by the 
United States Court of Appeals for the Eighth Circuit in 
Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):
        
        It is clear that the claimant need not be a total 
'basket case' before 
        the courts find that there is an inability to engage in 
substantial gainful 
        activity.  The question must be looked at in a practical 
manner, and mere 
        theoretical ability to engage in substantial gainful 
employment is not a 
        sufficient basis to deny benefits.  The test is whether 
a particular job is 
        realistically within the physical and mental 
capabilities of the claimant.

A claim for a total disability rating based upon individual 
unemployability "presupposes that the rating for the 
[service-connected] condition is less than 100%, and only 
asks for TDIU because of 'subjective' factors that the 
'objective' rating does not consider."  Vettese v. Brown, 7 
Vet. App. 31, 34-35 (1994).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court 
referred to apparent conflicts in the regulations pertaining 
to individual unemployability benefits.  Specifically, the 
Court indicated there was a need to discuss whether the 
standard delineated in the controlling regulations was an 
"objective" one based on the average industrial impairment 
or a "subjective" one based upon the Veteran's actual 
industrial impairment.  In a pertinent precedent decision, 
the VA General Counsel concluded that the controlling VA 
regulations generally provide that veterans who, in light of 
their individual circumstances, but without regard to age, 
are unable to secure and follow a substantially gainful 
occupation as the result of service-connected disability 
shall be rated totally disabled, without regard to whether an 
average person would be rendered unemployable by the 
circumstances.  Thus, the criteria include a subjective 
standard.  It was also determined that "unemployability" is 
synonymous with inability to secure and follow a 
substantially gainful occupation.  VAOPGCPREC 75-91. 

In determining whether unemployability exists, consideration 
may be given to the veteran's level of education, special 
training and previous work experience, but not to his age or 
to any impairment caused by non service-connected 
disabilities.         38 C.F.R. §§ 3.341, 4.16, 4.19 (2008).

A total disability rating for compensation may be assigned, 
where the schedular rating is less than total, when the 
disabled person is, in the judgment of the rating agency, 
unable to secure or follow a substantially gainful occupation 
as a result of service-connected disabilities, provided that, 
if there is only one such disability, this disability shall 
be ratable at 60 percent or more.  See 38 C.F.R. § 4.16(a) 
(2008).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to 
secure and follow a substantially gainful occupation by 
reason of service-connected disabilities, but fails to meet 
the percentage requirements for eligibility for a total 
rating set forth in 
38 C.F.R. § 4.16(a), such case shall be submitted for 
extraschedular consideration in accordance with 38 C.F.R. § 
3.321.

Analysis

As has been discussed in the law and regulations section 
above, TDIU may be awarded on either a schedular basis or an 
extraschedular basis.  As explained below, in this case only 
the schedular basis need be considered.

The Veteran is service-connected for cervical myositis with 
disc disease, status post C5-6 interbody fusion, which is 
currently 60 percent disabling.  As described above service 
connection has been awarded for depression; although a 
disability rating has yet to be assigned, in light of the 60 
percent rating currently assigned to the cervical spine 
disability the Veteran meets the criteria for schedular 
consideration of TDIU.  See 38 C.F.R. § 4.16(a) (2006).  

For reasons stated immediately below, the Board finds that 
the evidence of record demonstrates that the Veteran's 
service-connected disabilities render him unable to secure 
and follow a substantially gainful occupation.  

The Veteran has testified that he is incapable of any sort of 
physical labor due to his service-connected cervical spine 
disability since having surgery in 1997.  See the December 
2005 hearing transcript, page 24.  As described above, the 
Veteran also has chronic depression attributable to his 
service-connected cervical spine disability, which causes 
"significant problems with mood, affect, sleep, energy, 
focus, concentration, drive and emotional liability."  See 
the October 2002 statement of Dr. E.C.L. 

In support of his contentions, the Veteran has submitted a 
number of statements from his treating physicians pertaining 
to the effect of his service-connected cervical spine 
disability and depression on his employability.  Dr. E.C.L. 
has indicated the Veteran's "psychiatric symptoms and the 
extent and constancy of their presentation make [the Veteran] 
unemployable."  The October 1999 VA examiner similarly 
concluded the Veteran "has difficulty dealing with stress.  
His psychiatric condition has persisted over the last couple 
of years despite optimal treatment.  The Veteran is not able 
to tolerate the stresses of the work place."  D.R.B., Ph.D., 
concluded in January 1999 that the Veteran "is unable to be 
gainfully employed [and] increasingly unable to live in any 
functionally effective way outside his home" due to his 
psychiatric symptoms.

C.N.B., M.D., also provided testimony that the Veteran's 
cervical spine disability prevents him from working, noting: 
"his function is bad, and over the years multiple of the 
doctors say he's unemployable.  He has additional problems 
now.  He has worsening of symptoms.  He has increasing pain, 
and he also has some bladder problems that may be due to his 
neck.  So with that constellation of things, I think he's 
unemployable."  See the December 2005 hearing transcript, 
page 23.  Dr. C.N.B. also submitted a statement dated in May 
2004 indicating the Veteran "has been unable to obtain or 
maintain gainful employment due to his service-connected 
spine problems since the date of his surgery in July 1997."  
The October 1999 VA spine examiner similarly concluded that 
the Veteran's cervical spine symptoms "prevents [sic] him 
from getting any gainful employment until he gets the surgery 
done and pressure removed from the nerve roots in the neck."  
M.P.D., D.C., stated in January 1998 that "it is my opinion 
at this time due to his physical limitations [stemming from 
chronic injury and cervical spine fusion] and depression he 
is not suitable for employment. 

This conclusion is consistent with the objective evidence of 
record, to include numerous private outpatient records which 
demonstrate the Veteran's continuous complaints of severe 
neck pain, spasm and exacerbating episodes as well as chronic 
depression. 

In short, the medical and other evidence of record indicates 
that the Veteran's service-connected cervical spine 
disability and depression are productive of serious 
symptomatology which can be said to preclude employability.  
Based on the above analysis, the Board concludes that a grant 
of TDIU is warranted under 38 C.F.R. § 4.16(a).

In conclusion, for the reasons and bases expressed above the 
Board finds that the Veteran's claim for TDIU is warranted on 
a schedular basis.  The benefit sought on appeal is 
accordingly granted.

3.  Entitlement to an effective date earlier than December 1, 
1997 for the assignment of a 60 percent disability rating for 
service-connected cervical myositis with disc disease, status 
post C5-6 interbody fusion.

Relevant law and regulations

Effective dates - increased rating claims

The effective date of an award of increased disability 
compensation shall be the earliest date as of which it is 
factually ascertainable that an increase in disability had 
occurred, if application is received within one year from 
such date; otherwise, the effective date will be the date of 
VA receipt of the claim for increase, or the date entitlement 
arose, whichever is later.  38 U.S.C.A. § 5110(a),(b)(2) 
(West 2002); 38 C.F.R. § 3.400(o) (2008); Hazan v. Gober, 10 
Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 
(1997).

The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 
C.F.R. § 3.400(o)(2) are applicable only where an increase in 
disability precedes a claim for an increased disability 
rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) 
applies.  
See Harper, supra.  Thus, three possible dates may be 
assigned depending on the facts of the case:

(1) if an increase in disability occurs after the claim is 
filed, the date that the increase is shown to have occurred 
(date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year 
or less, the date that the increase is shown to have occurred 
(factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more 
than a year, the date that the claim is received (date of 
claim) (38 C.F.R. § 3.400(o)(2)).

See Harper, 10 Vet. App at 126.  

Claims for VA benefits

A specific claim in the form prescribed by the Secretary must 
be filed in order for benefits to be paid or furnished to any 
individual under the laws administered by VA. 38 U.S.C.A. § 
5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2008).

A claim is a formal or informal communication in writing 
requesting a determination of entitlement or evidencing a 
belief in entitlement to a benefit. 
38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2008).  
The date of receipt shall be the date on which a claim, 
information or evidence was received at VA. 
38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(r) (2008).

Any communication or action indicating an intent to apply for 
one or more benefits under the laws administered by VA, from 
a Veteran or his representative, may be considered an 
informal claim.  Such informal claim must identify the 
benefit sought.

Upon receipt of an informal claim, if a formal claim has not 
been filed, an application form will be forwarded to the 
claimant for execution. If received within one year from the 
date it was sent to the Veteran, it will be considered filed 
as of the date of receipt of the informal claim. When a claim 
has been filed which meets the requirements of 38 C.F.R. §§ 
3.151 or 3.152, an informal request for increase or reopening 
will be accepted as a claim.  38 C.F.R. § 3.155 (2008).


Diagnostic criteria

The applicable rating criteria for the spine, found at 
38 C.F.R. § 4.71a, were amended effective September 23, 2002 
and September 26, 2003.  However, VA's Office of General 
Counsel has determined that the amended rating criteria can 
be applied only for the period from and after the effective 
date of the regulatory change.  See VAOPGCPREC 3-2000.  
Therefore, only the former criteria are applicable to this 
issue, which involves the period before December 1, 1997.  

Diagnostic Code 5293, effective prior to September 23, 2002, 
provided a 60 percent rating for pronounced intervertebral 
disc syndrome, with persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or other neurological 
findings appropriate to the site of the diseased disc, and 
little intermittent relief.  A 40 percent rating was 
warranted for severe intervertebral disc syndrome, with 
recurrent attacks with intermittent relief; a 20 percent 
rating was warranted for moderate intervertebral disc 
syndrome with recurrent attacks, and a 10 percent rating was 
warranted for mild intervertebral disc syndrome.  See 38 
C.F.R. § 4.71a, Diagnostic Code 5293 (prior to September 23, 
2002).

Factual background

The Board believes that an exposition of the factual 
background will aid in an understanding of its decision.

The record reflects that in a September 1982 rating decision, 
service connection was granted for a cervical spine 
disability and a noncompensable (zero percent) disability 
rating was assigned.  A June 1989 rating decision awarded a 
10 percent rating for the service-connected cervical spine 
disability.  The Veteran did not appeal that decision.

In a statement received at the RO on August 10, 1992, the 
Veteran requested an examination to determine the current 
severity of his service-connected cervical spine disability.  
This was correctly interpreted by the RO as a claim for an 
increased rating.  In a January 1993 rating decision, the RO 
assigned a 20 percent disability rating for the service-
connected cervical spine disability, effective August 6, 
1992.  The Veteran perfected an appeal of that decision.

A rating decision dated in June 1999 assigned a 40 percent 
rating effective September 27, 1995.

The Board awarded a 60 percent disability rating for the 
service-connected cervical spine disability in a May 2006 
decision.  An October 2006 rating decision implemented the 
Board's findings, assigning a 60 percent rating, effective 
December 1, 1997.  [A temporary total evaluation was also 
assigned from July 11, 1997 to December 1, 1997.  See 38 
C.F.R. § 4.30 (2008).]  The Veteran indicated his 
disagreement with the December 1, 1997 effective date 
assigned for the 
60 percent rating effective December 1, 1997.  

Accordingly, the ratings for the service-connected cervical 
spine disability under former Diagnostic Code 5293 are staged 
as follows:

20 percent from August 6, 1992; 
40 percent from September 27, 1995;
100 percent from July 11, 1997 to November 30, 1997; 
60 percent from December 1, 1997.

Analysis

The RO has assigned an effective date of December 1, 1997 for 
the 60 percent rating for the cervical spine disability.  The 
Veteran seeks entitlement to an earlier effective date.

The Veteran, through his attorney, offers two arguments as to 
the early effective date claim on appeal: (1) that the 
effective date of the 60 percent rating should be from the 
date of his increased rating claim on August 1992 or in the 
year prior per 38 C.F.R. § 3.400(o); and (2) the date of the 
60 percent rating should be July 11, 1997, the date the 
Veteran underwent a cervical discectomy.  See the November 
10, 2006 notice of disagreement.

With respect to the attorney's second argument, as noted 
above the Veteran has been provided a temporary total 
evaluation from July 11, 1997 to November 30, 1997 as a 
result of his cervical discectomy.  Accordingly, extending 
the effective date for the 60 percent rating back to the date 
of surgery on July 11, 1997 would be of no benefit to the 
Veteran, and indeed would not be in his interest, as he is 
already in receipt of a 100 percent rating for that period of 
time.  Accordingly, the period of the previously assigned 
temporary total rating, from July 11, 1997 to November 30, 
1997, is not for consideration in adjudicating the earlier 
effective date claim.  

As was described in the law and regulations section above, 
determining an appropriate effective date for an increased 
rating involves an analysis of the evidence to determine (1) 
when the claim for an increased rating was received and (2) 
when entitlement arose (i.e., when the increase in disability 
actually occurred).  See 38 C.F.R. §§ 3.155, 3.400(o)(2).

(i.) Date of claim

As has been discussed in the factual background section 
above, the Veteran's previous increased rating claims were 
adjudicated by the RO, the last such final adjudication being 
an unappealed June 1989 rating decision.  See 38 U.S.C.A. 
§ 7105 (West 2002).  

A review of the record reveals that there is no communication 
from the Veteran or a representative of the Veteran to VA 
which can be interpreted as a claim for an increased rating 
for the cervical spine disability after the June 23, 1989 
notice of the June 1989 rating decision and prior to the 
August 10, 1992 claim for an increased rating.  See Servello 
v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board must 
look at all communications that can be interpreted as a 
claim, formal or informal, for VA benefits].  Neither the 
Veteran or his counsel has identified such a claim.

Additionally, there are no reports of VA outpatient treatment 
dated in the year prior to August 10, 1992 which could be 
construed as an informal claim under 38 C.F.R. § 3.157.  [The 
Board notes there is a record from M.P.D., D.C., dated August 
6, 1992 and three treatment records from J.D.C., D.O.  
However, these are private records, and the provisions of 
38 C.F.R. § 3.157 only apply to reports of VA treatment.]

Accordingly, the date of the increased rating claim is August 
10, 1992.

(ii.) Date entitlement arose

The Board's inquiry now shifts to the date entitlement to an 
increased rating arose, that is when it was factually 
ascertainable that an increase in disability occurred.  The 
time frame in question starts a year before the August 10, 
1992 claim, i.e., on August 10, 1991. 

The evidence shows that disability consistent with the 
assignment of a 40 percent rating under Diagnostic Code 5293 
was first medically identified on December 30, 1996.  At this 
time the Veteran first reported periods of flare-up with a 
complete loss of function requiring bed rest with hot packs, 
which was substantiated by the VA examiner.  The examiner 
further noted an "increased amount of stiffness and pain in 
the neck," and though muscle spasm was not objectively 
demonstrated the examiner acknowledged severe muscle spasms 
occur "from time to time."  Moreover, a considerable drop 
in the right shoulder and loss in the normal cervical 
lordotic curvature was noted at this time.  Such findings are 
consistent with severe intervertebral disc syndrome.  

Before December 30, 1996, symptoms consistent with a 20 
percent rating were present.  Although M.P.D. vaguely 
indicated the Veteran experienced "recurrent severe 
exacerbative episodes" in an August 1992 statement, the 
relevant objective evidence from the period in question does 
not support his statement.  The Veteran reported no such 
attacks when he was seen in March 1992 and described only 
"periodic" muscle spasms when examined in September 1992.  
Moreover, aside from the diagnostic testing conducted in 
February 1992, the Veteran sought no treatment for his 
cervical spine prior to M.P.D.'s statement.  See Forshey v. 
West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. 
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the 
definition of evidence encompasses "negative evidence" 
which tends to disprove the existence of an alleged fact, 
i.e., the lack of evidence is itself evidence].  Furthermore, 
the evidence from this period reflects that deep tendon 
reflexes were normal and equal bilaterally and sensation was 
intact.  Though as described above the Veteran reported 
occasional muscle spasm, none was identified upon objective 
examination.  An EMG study reviewed in May 1995 was 
completely normal, and the September 1995 VA examiner found 
no evidence of cervical radiculopathy or myelopathy.  
Additionally, the Veteran noted "dramatic improvement" with 
physical therapy from April 1994 to October 1994, with an 
October 1994 physical therapy note indicating full range of 
motion, strength and work capacity of the cervical spine.  
Additionally, the Veteran was capable of engaging in an 
exercise program during this time, with T.W.B. noting "well-
defined musculature secondary to exercise" in April 1995 and 
the September 1995 VA examiner describing the Veteran as 
"very muscular."  Such findings are indicative of no more 
than moderate intervertebral disc syndrome. 

Thus, the competent medial evidence of record indicates that 
an increase in disability to the 40 percent level was 
initially identified on December 30, 1996.  
However, as noted above the RO has assigned a 40 percent 
rating from the VA examination conducted on September 27, 
1995, a finding which the Board will not disturb.  

The Board will therefore move on to a discussion of when an 
increase to the 60 percent level was first identified.    

The evidence shows that disability consistent with the 
assignment of a 60 percent rating under Diagnostic Code 5293 
has not been medically identified prior the current effective 
date of December 1, 1997.  Specifically, characteristic pain 
was demonstrated in the December 1996 VA examination report 
and in a June 1997 physical therapy note.  However, pursuant 
to former Diagnostic Code 5293 such must be accompanied by 
"demonstrable muscle spasm," which was not objectively 
demonstrated at those times.  See Melson v. Derwinski, 1 Vet. 
App. 334 (1991) [use of the conjunctive "and" in a 
statutory provision meant that all of the conditions listed 
in the provision must be met].  Absent ankle jerk or other 
neurological findings appropriate to the site of the diseased 
disc are similarly not demonstrated in the evidence dated 
prior to December 1, 1997.  

Although the June 1997 physical therapy note referenced 
"radiculitis," such findings are in direct contrast to 
objective neurological testing conducted during the period in 
question, namely the February 1997 MRI report and the 
September 1995 VA examiner's report indicating "no evidence 
of cervical radiculopathy or myelopathy."  Additionally, 
deep tendon reflexes and sensory testing were normal 
throughout the period in question, and no foot drop or 
bladder or bowel dysfunction was identified.  Finally, the 
December 1996 VA examiner's description of periods of flare-
ups "from time to time" is indicative of periods of 
intermittent relief.  Such findings correspond precisely to a 
40 percent rating and do not equate with "pronounced 
intervertebral disc syndrome" allowing for assignment of a 
60 percent rating under Diagnostic Code 5293.

Therefore, the RO's choice of an effective date for the 60 
percent rating was correct.  

With respect to the argument of counsel, to the effect that 
the Veteran has had pronounced intervertebral disc syndrome 
since he filed his increased rating claim, the Board's 
decision has been based on the entirety of the medical 
evidence, which has been summarized above.  It is well-
settled that lay persons without medical training, such as 
the Veteran's attorney, are not competent to comment on 
medical matters.  See Espiritu v. Derwinski, 2 Vet. App. 492, 
494-5 (1992); see also 
38 C.F.R. § 3.159 (a)(1) [competent medical evidence means 
evidence provided by a person who is qualified through 
education, training, or experience to offer medical 
diagnoses, statements, or opinions].

In conclusion, for reasons stated above, the Board finds that 
that an effective date earlier than December 1, 1997 may not 
be granted for the 60 percent rating for the cervical spine 
disability.


ORDER

Service connection for depression is granted.

Entitlement to TDIU is granted, subject to controlling 
regulations applicable to the payment of monetary benefits.

Entitlement to an effective date prior to December 1, 1997 
for the assignment of a 60 percent disability rating for 
service-connected cervical myositis with disc disease, status 
post C5-6 interbody fusion is denied.



____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs