Citation Nr: 1032706 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 05-36 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for cervical spine fracture residuals of C1 and C2, currently evaluated as 20 percent disabling prior to November 3, 2009, and as 30 percent disabling from November 3, 2009. 2. Entitlement to service connection for degenerative joint disease of the lumbar spine, to include as secondary to the Veteran's service connected cervical spine disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to November 1979, and had subsequent reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied the Veteran's claims. These claims were remanded in January 2009 for further development and now return again before the Board. During the course of this appeal, the Veteran's rating for his service connected cervical spine disability was increased to 30 percent, effective November 3, 2009, therefore, the issues in appellate status are as listed above. FINDINGS OF FACT 1. Prior to November 3, 2009, the Veteran's cervical spine disability was manifested by pain and significant limitation of motion, but no ankylosis. 2. From November 3, 2009, the Veteran's cervical spine disability has been manifested by pain and significant limitation of motion, but no ankylosis. 3. The preponderance of the medical evidence of record indicates that the Veteran's lumbar spine disability is not related to service or to the Veteran's service connected cervical spine disability. CONCLUSIONS OF LAW 1. For the time period prior to November 3, 2009, the criteria for an evaluation of 30 percent, but no higher, for the Veteran's cervical spine disability, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2009). 2. For the time period from November 3, 2009, the criteria for an evaluation higher than 30 percent for the Veteran's cervical spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2009). 3. A lumbar spine disability was not incurred or aggravated in the Veteran's active duty service, nor is it secondary to any service connected disability. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). Here, the duty to notify was satisfied by way of letters sent to the Veteran in November 2004, March 2006, April 2006, and February 2009. These letters informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. The Veteran was also specifically informed of the law as it pertains to effective dates by the February 2009 and March 2006 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While most of the notices were not provided until after the rating decision that is the subject of the current appeal, this error is harmless because readjudicating the claims in the November 2007 and April 2010 supplemental statements of the case "cures" this timing problem. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing the Veteran with examinations, and providing the Veteran with a local hearing at the RO. Accordingly, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran in the development of his claims. Under the circumstances of this case, additional efforts to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case and that such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Consequently, the duty to notify and assist has been satisfied. The Board also finds that the there has been substantial compliance with its January 2009 remand directives as a February 2009 VCAA notice letter was sent to the Veteran, the Veteran reported no additional treatment of his back disabilities since January 2007, and a VA spine examination was performed in November 2009. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to an increased rating for cervical spine fracture residuals of C1 and C2, currently evaluated as 20 percent disabling prior to November 3, 2009, and as 30 percent disabling from November 3, 2009. The Veteran contends that a higher rating is warranted for his service-connected cervical spine disability, as he feels this disability has increased in severity since his last evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2009). 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. Part 4, § 4.7 (2009). In addition, the United States Court of Appeals for Veterans Claims (hereinafter "Court") has also held 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, resulting in staged rating, which is already the case in this claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In evaluating the Veteran's claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), it was held that service connection for distinct disabilities resulting from the same injury could be established so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2009). The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare- ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 - 207 (1995). As noted above, the Veteran's cervical spine disability is currently rated 20 percent disabling prior to November 3, 2009, and as 30 percent disabling from November 3, 2009. Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243), which is not at issue in this case. The Veteran's increased rating claim was filed in September 2004; accordingly, only the amended criteria will be employed in the adjudication of this claim. In order to receive a 100 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must demonstrate ankylosis of the entire spine. Assignment of a 40 percent rating requires unfavorable ankylosis of the entire cervical spine. The criteria for a 30 percent rating are: forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for: 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. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 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), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The fact that these criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). Taking into account all relevant evidence for the time period prior to November 3, 2009, the Board finds that the criteria for an evaluation of 30 percent, but no higher, for the Veteran's service-connected cervical spine disability, have been met. As noted above, in order to warrant a higher evaluation, the Veteran would have to be found to have forward flexion of the cervical spine 15 degrees or less; or, favorable anklyosis of the entire cervical spine. Reviewing the relevant evidence of record from this period, during the Veteran's March 2005 VA examination, he was found to have cervical spine flexion to 20 degrees, insufficient to warrant an increased evaluation. However, a report of neurology consultation dated November 2006 indicates that the Veteran had only "about" 10 degrees of flexion. Further, a January 2007 report of neurology consultation indicates that the Veteran had range of motion of only "a few degrees in any direction." Resolving all doubt in favor of the Veteran, the Board finds that the preponderance of the evidence of record indicates that the Veteran's cervical spine had limitation of motion during this period of forward flexion of 15 degrees, or less, such that a 30 percent rating would be warranted. However, as noted above, in order to warrant a higher evaluation, the Veteran would have to be found to have unfavorable ankylosis of the entire cervical spine. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). While as described above the Veteran's limitation of motion during this period has been significant, at worst he was still able to achieve a few degrees of cervical spine motion in any direction. It is thus manifest that the Veteran's cervical spine is not immobile. Accordingly, the Veteran's service-connected cervical spine disability does not warrant a 40 or 100 percent rating under the General Rating Formula for Diseases and Injuries of the Spine prior to November 3, 2009. The Board also finds that the criteria for an evaluation in excess of 30 percent for the Veteran's cervical spine disability, have not been met beginning November 3, 2009. As noted above, in order to warrant a higher evaluation, the Veteran would have to be found to have unfavorable ankylosis of the entire cervical spine. While the Veteran's limitation of motion is significantly limited, there is simply no indication that the Veteran has, at any time, been found to have an anklyosed cervical spine. The Veteran's November 2009 VA examination specifically indicates that the Veteran had cervical spine range of motion of 10 degrees of extension, 5 degrees of flexion, 10 degrees of right rotation, and 10 degrees of lateral bending bilaterally. While the Veteran could not rotate to the left, as the Veteran was able to move in all other directions, his cervical spine is clearly not ankylosed. Indeed, the examiner specifically commented that the Veteran "does not have ankylosis." As there is no evidence of record of ankylosis of the cervical spine, the Board finds that the criteria for a 40 percent rating for this period are not met. Nor is there evidence of ankylosis of the entire spine to warrant a 100 percent rating. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45 (2009). See DeLuca, supra. However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. As explained above, a higher schedular rating is not available in the absence of unfavorable ankylosis. The medical and other evidence of record does not suggest that any loss of function caused by pain amounts to immobility of the cervical spine. Thus, there is no basis on which to assign a higher level of disability based on 38 C.F.R. §§ 4.40 and 4.45. The Veteran has testified as to symptoms of numbness in the upper extremities and headaches associated with his cervical spine disability. See the February 2006 hearing transcript. However, neurological examinations conducted during the course of this appeal demonstrate no neurological symptomatology related to his cervical spine disability. Specifically, the November 2006 VA examination report demonstrated normal sensory testing, and deep tendon reflexes (DTRs) 1+ in the upper extremities. The January 2007 VA examiner found "no evidence of neurological disorder at the present time involving the spinal cord." Finally, the November 2009 VA examiner, who reviewed private magnetic resonance imaging (MRI) studies of the cervical spine, determined there were "no cervical spinal cord abnormalities." There is no competent medical evidence to the contrary. Therefore an additional separate rating based on neurologic symptomatology is not warranted at any time during the course of the appeal. In deciding this appeal, the Board has considered whether the Veteran is entitled to higher evaluations for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, supra. As the disability has remained relatively stable at this increased level, however, staged ratings are not appropriate. The evidence of record does not raise the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). That regulation applies when the rating schedule is inadequate to compensate for the average impairment of earning capacity for a particular disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, the General Rating Formula for Disease and Injuries of the Spine reasonably describes the Veteran's disability level and symptomatology. Furthermore, the competent evidence does not demonstrate that his cervical spine disability causes marked interference with the Veteran's activities of daily living, over and above what it is contemplated by the schedule. The Board specifically recognizes the Veteran's report to the November 2009 VA examiner that he had to occasionally miss work due to cervical spine pain. However, these symptoms are contemplated by the 30 percent rating assigned. He does continue to be able to work full time, without requiring frequent hospitalizations, or otherwise manifesting impairment that is unrecognized by the schedule. As this Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. See Thun v. Peake, supra. Referral for extraschedular consideration is not warranted. Entitlement to service connection for a lumbar spine disability. The Veteran contends that service connection is warranted for a lumbar spine disability. Essentially, the Veteran argues that his current lumbar spine disability was caused either by the same accident in service that injured his cervical spine, and for which he is service connected, or that his lumbar spine disability is secondary to his service connected cervical spine disability. Applicable laws provide that in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(b). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. Service connection may also be granted for chronic disorders, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2009). Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Taking into account all relevant evidence, the Board finds that service connection is not warranted for a lumbar spine disability. In this regard, the Board notes that the entirety of the medical evidence of record indicates that the Veteran's lumbar spine disability is not due to service or secondary to his service connected cervical spine disability. The Board notes that, while there are medical records concerning the Veteran's cervical spine injury in service, the Veteran's service treatment and examination records show no complaints of, or treatment for, any specific lumbar spine disability. While the Veteran occasionally complained of low back pain in service, this was generally found to be due to acute muscle strain, and the Veteran was not diagnosed with any chronic lumbar spine disability during service. The earliest evidence of record showing a diagnosed chronic lumbar spine disability are private treatment records from 2003, 24 years after the Veteran's separation from service, which show mild spurring and mild degenerative joint disease of the lumbar spine, well beyond the period for presumptive service connection for arthritis. See 38 C.F.R. §§ 3.307, 3.309 (2009); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Veteran also had several VA examinations during the course of this appeal. In a March 2005 report of VA spinal examination, the Veteran was examined and X-rayed, and found to have minimal degenerative changes of the lumbosacral spine. The examiner at that time indicated that in his opinion, it was NOT as least as likely as not that the Veteran's minimal degenerative changes as noted on X-ray were related to his cervical injury in service. The examiner stated that in his opinion, the changes were a consequence of the aging factor. The examiner felt that while the Veteran may have complained of back pains during service, these were ascribed to an acute muscular strain. The examiner also noted that the Veteran's alleged pain level and negligible range of motion appeared disproportionate to any objective findings. At the time of the November 2009 VA examination, the Veteran was found to have degenerative disc disease of the lumbar spine. The examiner indicated that, based on his examination and review of the records, he did not think it likely that the Veteran's low back disorder was directly related to active duty, or was caused or aggravated by the Veteran's service-connected cervical spine disability. The examiner stated that it was more likely that the Veteran's degenerative disc disease of the lumbar spine was related to his aging and natural progression. In reaching the above conclusions, the Board has also not overlooked the Veteran's and his representative's written statements to the RO, the Veteran's statements to VA examiners, or his personal hearing testimony. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, while lay witnesses are competent to describe experiences and symptoms that result therefrom, because laypersons are not trained in the field of medicine, they are not competent to provide opinions relating to the etiology of diseases or disabilities. Id; see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the Board will give more credence to the medical evidence found in the record than these lay assertions. Thus, the preponderance of the medical evidence of record indicates that the Veteran's current lumbar spine disability is not related to service or his service-connected cervical spine disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to a 30 percent rating for cervical spine fracture residuals of C1 and C2, but no higher, prior to November 3, 2009, is granted; entitlement to a rating greater than 30 percent disabling from November 3, 2009 is denied. Entitlement to service connection for degenerative joint disease of the lumbar spine, to include as secondary to the Veteran's service connected cervical spine disorder, is denied. ____________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs