Citation Nr: 1104232 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 09-02 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for cervical spine strain, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to May 2006. He participated in Operation Iraqi Freedom and received the Army Commendation Medal and Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied entitlement to an increased (compensable) rating for a cervical spine strain, then evaluated as noncompensable. In a February 2009 Decision Review Officer decision, a 20 percent rating was assigned for a cervical spine strain, effective January 4, 2008, which was considered the date of his claim. In September 2009, the RO denied entitlement to a total rating for compensation based on individual unemployability. The claims folder does not contain a notice of disagreement with this decision. FINDING OF FACT The Veteran's cervical spine strain is manifested by limitation of flexion to between 24 and 40 degrees with pain throughout the entire range of motion. CONCLUSION OF LAW The criteria for an increased, 30 percent, rating for cervical spine strain have been met since January 4, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). A veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). In this case, the Veteran's representative stated in a September 2010 statement to the Board that the Veteran's cervical spine disability warranted a 30 percent rating. No other specific argument has been presented during the course of this appeal. The Board is granting the precise relief requested by the Veteran, i.e., an increased 30 percent rating for a cervical spine strain. Thus, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's cervical spine strain is currently rated under 38 C.F.R. § 4.71a, DC 5242 as degenerative arthritis of the spine. However, the Veteran has only been diagnosed as having a cervical spine strain and the evidence does not reflect that a diagnosis of degenerative arthritis of the cervical spine has ever been provided. The Veteran's service-connected cervical spine disability is more properly rated under 38 C.F.R. § 4.71a, DC 5237 as cervical strain; although both disabilities are rated on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010). Under the applicable criteria, cervical strain is evaluated under the general rating formula for rating diseases and injuries of the spine. DC 5237. Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or if there is 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 rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. VA treatment records dated from July to December 2007 indicate that he reported neck pain. Evaluations during this period revealed neck stiffness with painful range of neck motion. X- rays of the neck were normal and an MRI of the neck revealed a loss of normal lordosis and minimal spondylitic changes, but no large disc herniation or canal stenosis. Diagnoses of a cervical spine injury were provided. A January 2008 VA examination report reveals that the Veteran reported that he had experienced constant and worsening dull neck pain (5/10 in intensity) ever since an in-service neck injury. The neck discomfort was exacerbated by any type of movement, running, cold damp weather, and walking, and medication provided only fair relief. There were no flare ups, as the pain was constant. There was no fatigability, incoordination, or lack of endurance, however there was limited range of neck motion due to constant pain and weakness. He experienced occasional dizziness and visual disturbances; however, he reported that such symptoms were possibly associated with his psychiatric medications. There were no other reported symptoms associated with his neck disability. He did not use a cervical collar, there were no periods of incapacitation in the previous 12 months, he was able to walk approximately 200 meters before requiring rest, and he denied having any falls or unsteadiness. There was no history of neck surgery, his activities of daily living were not impaired, and he was unemployed. Examination of the neck revealed discomfort on palpation without any trigger points, but no gross deformity. Any attempt to move the Veteran's neck caused him to grimace. Range of motion of the neck was recorded as forward flexion to 24 degrees, extension to 15 degrees, right rotation to 18 degrees, left rotation to 12 degrees, right lateral flexion to 35 degrees, and left lateral flexion to 28 degrees. The Veteran appeared extremely uncomfortable when he attempted to make any of these movements. There was no crepitation, swelling, heat, or other symptoms, and neck symptoms did not radiate to the upper extremities. Grip strength in the upper extremities was weak bilaterally, however sensation was intact. Biceps, triceps, and brachioradialis reflexes were normal (2+), symmetrical, and brisk. The Veteran was diagnosed as having an old whiplash injury to the cervical spine The physician who conducted the January 2008 VA examination concluded that the Veteran's neck disability remained symptomatic with minimal functional impairment. There was impaired range of motion of the cervical spine due to pain and weakness. A May 2010 VA examination report indicates that the Veteran reported that he had been unemployed since 2007 and was receiving Social Security Administration disability compensation for posttraumatic stress disorder. He continued to experience neck pain which was increased by any activity involving the neck. He was not prescribed medication for the neck pain, did not use a neck brace or collar, and had not undergone any physical therapy. The pain was continuous and worsening, occasionally occurred on both sides of the neck at the same time, and occasionally radiated up the side of his head to the temporal area. The pain was 5-8/10 in intensity and was increased by repetitive movements, however there was no weakness, fatigue, or lack of endurance of the arms. Due to his neck symptoms, he was unable to play with his children, his sleep was restless, and he was unable to exercise. Examination revealed that the Veteran was appropriately responsive to all sensory stimuli and that muscle strength was normal (5/5) in all extremities, however deep tendon reflexes were absent in the upper extremities. He was able to toe-walk, heel-walk, perform tandem gait, do a partial squat, and his gait was normal, but he walked with his neck in a very stiff and straight position which was maintained throughout the examination. There was slightly increased muscle tension in the left paravertebral muscles, but it was not severe, and there was no acute muscle spasm. Range of motion of the neck was recorded as forward flexion to 40 degrees, extension to 30 degrees, right and left lateral flexion both to 23 degrees, and right and left rotation both to 40 degrees. The Veteran reported pain throughout the entire range of motion and he moved in a very slow manner through all ranges of motion. Following repetitive motion, range of motion was recorded as forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, and right and left rotation both to 20 degrees. The Veteran reported and exhibited increased pain through facial grimacing and deep breathing with slow exhalation. Palpation of the neck revealed no acute muscle spasms. X-rays revealed that the vertebral bodies were normally aligned with no evidence of interspace narrowing, fracture, dislocation, or bone production or destruction. A diagnosis of a cervical strain was provided. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The January 2008 VA examination report reflects that any attempt to move the Veteran's neck caused him to grimace and that he appeared extremely uncomfortable when he attempted any neck motion. There was impaired range of neck motion due, in part, to pain. Furthermore, the May 2010 VA examination report reveals that there was pain associated with the cervical spine throughout the entire range of motion. Flare ups were not reported as neck pain was constant. Given the evidence of pain throughout the entire range of motion, an increased 30 percent rating is warranted under DC 5237 for the entire appeal period on the basis of functional impairment that equates to forward flexion of the cervical spine limited to 15 degrees or less. This is the maximum allowable rating under DC 5237 on the basis of limitation of motion. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5237. Hence, the full benefit sought on appeal is granted. ORDER Entitlement to an increased, 30 percent, rating for cervical spine strain is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs