Citation Nr: 1120691	
Decision Date: 05/27/11    Archive Date: 06/06/11

DOCKET NO.  07-16 016	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office & Insurance Center in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right hip disorder. 

2.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left hip disorder. 

3.  Entitlement to a temporary total disability evaluation based on convalescence following cervical spine surgery in June 2002.  

4.  Entitlement to a rating for major depression in excess of 50 percent prior to December 19, 2005, and in excess of 70 percent thereafter.  

5.  Entitlement to a rating for degenerative disc disease of the cervical spine, to include postoperative residuals of cervical spine surgery, in excess of 30 percent prior to April 27, 2006; and in excess of 30 percent since August 1, 2006.  

6.  Entitlement to a rating for chronic mechanical low back pain in excess of 10 percent prior to April 5, 2006, and in excess of 20 percent thereafter. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J Fussell


INTRODUCTION

The Veteran served on active service from January1992 to September 2001.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision of the Department of Veterans Affairs (VA) Regional Office & Insurance Center (RO) in Philadelphia, Pennsylvania, which denied reopening claims for service connection for right and left hip disabilities, and denied a temporary total rating based on need for convalescence following cervical spine surgery in June 2002; and denied ratings in excess of 50 percent for major depression, 30 percent for cervical degenerative disc disease, and 10 percent for chronic mechanical low back pain (all of which had been effective since September 9, 2001, the day after service discharge).  

A March 2007 rating decision granted a temporary total rating based on need for convalescence following cervical spine surgery effective April 27, 2006, and a 30 percent schedular rating was resumed June 1, 2006.  

An April 2007 rating decision granted an increase for major depression from 50 percent to 70 percent, effective December 19, 2005 (date of claim); and also granted an increase from 10 percent for service-connected chronic mechanical low back pain to 20 percent effective April 5, 2006 (date of private examination for a Social Security disability evaluation).  

An August 2008 rating decision extended the period of convalescence following cervical spine surgery beyond May 31, 2006, to July 31, 2006, and a 30 percent schedular rating was resumed August 1, 2006.  That rating action also granted special monthly compensation based on being housebound from April 27, 2006, to August1, 2006.  

A May 2009 rating decision granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) and also entitlement to basic eligibility for Dependents' Educations Assistance under 38 U.S.C. Chapter 35, both effective from December 17, 2005.  

In March 2010, the Veteran failed to appear at a scheduled videoconference hearing before the Board.  Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn.  38 C.F.R. § 20.704(d) (2010).  

The claim for a temporary total disability evaluation based on convalescence following cervical spine surgery in June 2002 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran was notified in August 2002 of a rating decision in April 2002 which denied service connection for sacroiliac and hip sclerosis but the Veteran did not appeal that decision and it became final.  

2.  Additional evidence received since the unappealed rating action of April 2002, taken together with evidence previously on file does not relate to an unestablished fact necessary to substantiate the claims for service connection for a right hip or a left hip disorder.  

3.  Prior to December 19, 2005, the Veteran's service-connected major depression was manifested by some impairment of speech, anxiety, and restlessness but there is no evidence of intermittently illogical, obscure or irrelevant speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, or neglect of personal appearance.  

4.  Since December 19, 2005, the service-connected major depression has caused severe social, occupational, and interpersonal impairment but Global Assessment of Functioning scores have not exceeded 50; and there has been no gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; or persistent danger of hurting self or others.  

5.  Prior to April 27, 2006, Veteran's cervical degenerative disc disease did not cause 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, or dyspnea or dysphagia. 

6.  Since August 1, 2006, the Veteran's cervical degenerative disc disease has not caused 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, or dyspnea or dysphagia.

7.  Prior to April 5, 2006, the Veteran did not have thoracolumbar flexion limited to 60 degrees or less, or limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less, and no abnormal gait or abnormal spinal contour.  

8.  Since April 5, 2006, the Veteran has not had ankylosis, favorable or unfavorable, of the thoracolumbar spine or unfavorable ankylosis of the entire spine and thoracolumbar flexion has not been to 30 degrees or less. 


CONCLUSIONS OF LAW

1.  The unappealed rating action of April 2002, which denied service connection for sacroiliac and hip sclerosis and of which the Veteran was notified, is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a) (2010).  

2.  New and material evidence has not been submitted to reopen the claim for service connection for a right hip disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).  

3.  New and material evidence has not been submitted to reopen the claim for service connection for a left hip disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).  

4.  The criteria for an evaluation in excess of 50 percent for major depression prior to December 19, 2005, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.130, Diagnostic Code 9434 (2010).

5.  The criteria for an evaluation in excess of 70 percent for major depression since December 19, 2005, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.130, Diagnostic Code 9434 (2010).

6.  The criteria for an evaluation in excess of 30 percent for degenerative disc disease of the cervical spine, to include postoperative residuals of cervical spine surgery, prior to April 27, 2006, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.40, 4.45, 4.49, 4.71, Plate II, 4.71a, Diagnostic Code 5237 (2010).

7.  The criteria for an evaluation in excess of 30 percent for degenerative disc disease of the cervical spine, to include postoperative residuals of cervical spine surgery, since August 1, 2006, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.40, 4.45, 4.49, 4.71, Plate II, 4.71a, Diagnostic Code 5237 (2010).

8.  The criteria for an evaluation in excess of 10 percent for chronic mechanical low back pain prior to April 5, 2006, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.40, 4.45, 4.49, 4.71, Plate II, 4.71a, Diagnostic Code 5237 (2010).

9.  The criteria for an evaluation in excess of 20 percent for chronic mechanical low back pain since April 5, 2006, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.7, 4.21, 4.40, 4.45, 4.49, 4.71, Plate II, 4.71a, Diagnostic Code 5237 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and to assist claimants in substantiating VA claims. See 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R § 3.159.  

Duty to Notify

When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively).  38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  

By a pre-adjudication VCAA notice letter in February 2006 the Veteran was notified of the evidence needed to substantiate claims of entitlement to service connection for right and left hip disabilities.  Namely, evidence that a current disability had its origin during service.  He was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf.  He was notified that his prior claim for service connection for "hip sclerosis" was denied in August 2002 and that new and material evidence was needed to reopen the claims and he was informed of the nature of new and material evidence.  

The February 2006 letter did not provide the Veteran with the proper information to comply with the holding in Kent.  However, the Veteran was not prejudiced by such.  Specifically, the rating decision appealed in April 2006 informed the Veteran of the reason for the prior April 2002 RO denial of the claims for service connection, i.e., that the evidence on file did not show a post service disability of either hip.  Thereafter, the applications to reopen were subsequently readjudicated in April 2007 Statement of the Case (SOC) which also informed him of how VA determined disability ratings and effective dates, and again in the Supplemental SOC (SSOC) of June 2009.  He was notified of the reasons for the April 2002 denial of his claims for service connection for disabilities of the hips in an RO letter in March 2009, in compliance with the holding in Kent, supra.  See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); aff'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (failing to afford a preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication in an SSOC); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)

As the applications to reopen the claims for service connection for disability of the hips are denied, no disability rating and effective date will be assigned as a matter of law.  Therefore, there can be no possibility of any prejudice to the Veteran with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473.  See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

The Veteran was provided VCAA notice as to his claims for increased compensation for his cervical spine disorder in November 2005.  However, that letter was returned as undeliverable.  Accordingly, he was sent the required VCAA notice as to cervical spine increased rating claim (and the claim for a temporary total rating based on need for convalescence) to a new address by RO letter dated January 2006.  That letter informed him of the evidence needed to show an increase in disability, and he was informed that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf.  

Also, as to the increased-rating claims, VA must provide notification that to substantiate an increased rating claim the claimant should provide or ask VA to obtain medical or lay evidence demonstrating a worsening or increase in a disability's severity and the effect thereof on the claimant's employment.  Vazquez-Flores v. Shinseki, No. 05-0355, slip op. at 11 (U.S. Vet. App. October 22, 2010).  See also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shineki, No. 2008-7150, slip op. (Fed.Cir. Sept. 4, 2009).  This was done in the RO letters of August 2008 and March 2009, prior to readjudication of the claims in the June 2009 SSOC.  

Here, in the Veteran's letter, received in April 2006, he cited and provided information in "Reference to Dingess/Hartman v. Nicholson (2006)" and reported information in which he addressed the "nature and symptoms" relating to the spinal conditions and the "severity and duration, and impact on employment."  Thus, the Veteran demonstrated he had actual knowledge of the requirements of Dingess and Vasquez, both supra.   

Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case.

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims.  The RO has obtained the Veteran's service treatment records (STRs).  The Veteran declined the opportunity to testify in support of his claims.  His VA records are on file.  His private treatment records have also been obtained.  Records of the Veteran's claim for Social Security Administration disability benefits are on file.  

The Veteran has been afforded VA examinations for his claims for increased ratings.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  

As to the application to reopen the claims for service connection for disability of the hips, under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented.  38 C.F.R. § 3.159(c)(4)(iii). 

As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

Reopening

The RO had originally denied the claims for service connection for right and left hip disabilities on the merits in a rating decision in April 2002, of which he was notified by RO letter in August 2002, because such disabilities were neither occurred in or caused by active service and the evidence, consisting of VA examination in 2001, did not show current disability of either hip.  The Veteran did not appeal that decision. 

Under 38 U.S.C.A. §§ 5108, 7105(c) (West 2002) and 38 C.F.R. §§ 3.104, 20.302(a) a rating action which is not appealed is final and may not be reopened unless new and material evidence is presented.  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

A finally-adjudicated claim may be reopened by submitting new and material evidence.  New evidence is existing evidence not previously submitted and material evidence is that which by itself or when taken with prior evidence relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of evidence of file at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).  However, the question of whether there is a reasonable possibility of substantiating the claim (in the final sentence of § 3.156(a)) does not create a third element and separate determination in the reopening analysis but is a component of whether there is new and material evidence.  Shade v. Shinseki, No. 08-3548, slip op. at 9 thru 11 (U.S. Vet. App. Nov. 2, 2010);( --- Vet.App. ----, 2010 WL 4300776 (Vet.App.)) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen).  


Principles of Service Connection

For service connection to be granted for any disability, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein.  38 U.S.C.A. § 1110.  A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  If not established, a showing of continuity of symptoms after service discharge is required.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303. 

However, not every manifestation of joint pain in service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the noted inservice condition is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303. 

Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Service connection requires that there be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In the determination of whether the claims for service connection should be reopened the benefit-of-the-doubt standard does not apply.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).  

Evidence Previously Considered

The evidence on file at the time of the April 2002 rating decision included the Veteran's STRs which show that in September 1999, he complained of right hip pain which he experienced when hunting and exercising.  X-rays of his hip revealed no abnormality.  The diagnosis was "left" hip pain.  

On VA orthopedic examination in November 2001 the Veteran denied any significant trauma of the left hip while in military service, but he reported having occasional severe testicular pain on the left side.  Reportedly, a diagnosis of sclerosis of the left hip was made during military service.  He complained of chronic groin and gluteal pain, which was increased by prolonged weight-bearing.  On examination there was no swelling, increased heat or erythema of the joints.  There was no tenderness to palpation over the gluteal area or over the greater trochanteric areas.  Motion of the left hip was limited as compared to the right hip, with discomfort elicited in all planes of left hip motion at the extremes of motion.  X-rays of the left hip revealed no evidence of fracture or dislocation or joint effusion and the joint space appeared unremarkable.  The pertinent diagnosis was no sign of pathology found in the hips.  

On VA general medical examination in December 2001 the Veteran complained of, in part, hip joint pain.  

In the April 2002 rating decision, the RO denied the claims, stating there was no competent evidence of a current bilateral hip disability.


Additional Evidence

The evidence received since the April 2002 rating decision includes a July 2006 statement from Dr. B.R.R. indicates that the Veteran had anterior cervical decompression with fusion on April 27, 2006 at C4-5 and a vertebrectomy with allograft from the right hip at C4-5.  

On VA examination in March 2009 the Veteran had full strength in the flexor and extensor muscles of the hips.  

Analysis

While the evidence from Dr. B.R.R. is both new and relevant, inasmuch as it pertains to the Veteran's right hip, it is not material.  This is because merely having taken bone tissue from the area of the right hip for the purpose of surgical fusion at C4-5 does not establish the presence of a disability of the right hip which is of service origin.  Rather, it establishes that the Veteran had tissue removed from that area for a surgical procedure involving his cervical spine.  This does not establish that the Veteran has a current right hip disability.  The Board notes that there is nothing in the record pertaining to the left hip.

Because the additional evidence does not establish a current disability of the right or left hip, the claims cannot be reopened.  In other words, the defect of a current disability has not been cured.

Accordingly, the application to reopen the claims for service connection for disorders of each hip is denied. 

Increased Ratings

General Rating Principles

Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155.  Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present.  38 C.F.R. § 4.1, 4.2.  A higher rating is assigned if it more nearly approximates such rating.  See 38 C.F.R. §§ 4.7, 4.21.  Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings) and Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim).   

Major Depression Rating Criteria

Under 38 C.F.R. § 4.126 (a) and (b) consideration is given to the frequency, severity, and duration of psychiatric symptoms as well as the length and capacity for adjustment during periods of remission.  While consideration is given to the extent of social impairment, a psychiatric rating will not be assigned solely on the basis of social impairment.  

Under 38 C.F.R. § 4.130, Diagnostic Code 9434 the General Rating Formula for Mental Disorders sets forth the criteria for a rating of 70 percent for major depression and these are occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating.  

The use of "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  So, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms in the Rating Schedule; rather, VA must consider all symptoms of a psychiatric disorder that affect occupational and social impairment, including, if applicable, those identified in the DSM-IV.  

The GAF Scale "is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994)."  Richard v. Brown, 9 Vet. App. 266, 267 (1996).   

A GAF score of 51 to 60 indicates that the examinee has moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers).  A GAF score of 41 to 50 indicates that the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).  See Richard v. Brown, 9 Vet. App. 266, 267 (1996).  A GAF score of 31 to 40 indicates that the examinee has some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed person avoid friends, neglects family, and is unable to work).  


Major Depression in excess of 50 percent prior to December 19, 2005

The Veteran's claim for an increased rating for his service-connected major depression was received on December 19, 2005.  

Treatment records of the Family Practice Clinic reflect treatment in 2005 for, in part, psychiatric disability.  In November 2005 he reported that some medication was causing him to have difficulty retrieving words.  He was becoming frustrated by stammering speech and he exhibited some anxiety symptoms and restlessness.  

Treatment records of the Family Practice Clinic reflect treatment in December 2005 and 2006 for in part, psychiatric disability.  On December 15, 2005, he noted some improvement as to the side-effects of medication in that there was less "scanning" speech.  There was also improvement as to his anxiety.  He felt that he was much more verbal and did not avoid direct eye contact. 

Analysis

Service connection for major depression was granted by an April 2002 rating decision and assigned an initial 50 percent rating, based on the findings on VA psychiatric examination in October 2001.  

The evidence on file for one year prior to the receipt of the December 19, 2005, claim for an increased rating does show that the Veteran had, at least for awhile, some impairment of his speech and memory due to medication.  However, this improved and there is no evidence of intermittently illogical, obscure or irrelevant speech.  Additionally, impairment in speech is contemplated by the 50 percent evaluation.  Likewise, there is no evidence of near-continuous panic or depression, impaired impulse control, spatial disorientation, or neglect of personal appearance which would warrant the next higher, i.e., 70 percent, disability rating for his service-connected major depression, to include symptoms that are of similar severity.  So, a rating in excess of 50 percent prior to December19, 2005, is not warranted. 

Major Depression in excess of 70 percent since December 19, 2005

Treatment records of the Family Practice Clinic reflect treatment in December 2005 and 2006 for, in part, psychiatric disability.  In January2006 it was reported that the Veteran was thinking more clearly, had less stammering speech and searching of his memory, and was improved overall.  

Dr. K evaluated the Veteran in January 2006.  On examination the Veteran was alert and fully oriented.  He was pleasant and cooperative.  He had spontaneous and fluent speck.  He was able to give details of his past medical history without difficulty.  

On VA psychiatric examination in March 2006 the Veteran reported that he had a good family relationship but was isolated and did not have many friends.  He had no hobbies and not many activities except for doing things around his house.  He had no history of suicide attempts, assaultiveness or substance abuse.  In summary, it was felt that he had severe limitations as to his psychosocial functional status.  He had not received psychiatric outpatient treatment and had not been hospitalized for his psychiatric disorder.  He did take anti-depressant medication without side-effects and the effectiveness was fair in that he did not have as much in the means of panic attacks or anxiety.  However, his current psychiatric complaints were depression and panic attacks, with the latter occurring almost daily, which he described as two to three times a day.  He reported feeling helpless and hopeless.  He had outbursts of extreme irritability, anger, and frustration.  He had had little remission in his symptoms and had episodic worsening of his mood and anxiety.  

On mental status examination the Veteran was clean and casually dressed.  He had psychomotor activity consisting of hand wringing.  His speech was impoverished, hesitant, soft, and slow.  He was cooperative but his attitude was one of being irritable and apathetic.  His affect was constricted and his mood was anxious and depressed.  He was easily distracted.  He was able to perform serial 7's and to spell a word forward and backward.  He was fully oriented.  His thought processes were logical, goal directed, and relevant.  As to thought content, he was preoccupied with one or two topics and he had poverty of thought.  As to judgment, he understood the outcome of behavior and, as to insight, he understood that he had a problem.  He had severe sleep impairment which interfered with daily activities.  He had no hallucinations or inappropriate behavior.  He interpreted proverbs appropriately.  As to obsessive or ritualistic behavior, this was moderate in that he had to do things in a certain manner.  When outside of his house he had panic attacks once or twice.  He had fair impulse control but had had episodes of violence.  He had occasional suicidal thoughts but no plans or attempts.  He had no homicidal thoughts.  His recent, remote, and immediate memory were normal.  The diagnosis was recurrent major depression.  His GAF score was 50.  His depression caused limited motivation and impaired his psychosocial functioning. 

In February 2007 the Veteran's wife reported that the Veteran's major issues included depression from years of dealing with pain.  His pain kept him awake at night and he had difficulty arising from bed in the morning due to stiffness and pain.  He had difficulty with even simple tasks and he was very short tempered with his children.  His medications had inhibited his desire for sex and affected his sexual functions.  He was unable to enjoy his hobbies and interests due to everything he was going through.  

In an August 2008 statement from an adjunct professor of DeSales University it was reported that the Veteran had been a student for the past 2 months in a course in American Literature of the Progressive Era.  The Veteran had had difficulties meeting course requirements which seemed to stem primarily from his physical disabilities.  It was obvious that he experienced a great deal of pain which interfered with his concentration during class.  Medications to control his pain seemed to interfere with his ability to focus and he sometimes seemed dazed.  There were also times when he was irritable and he had been instructed to keep this tendency under control.  It was clear that he struggled constantly with feelings of depression on a daily basis and this made it difficult for him to accomplish class assignments and to interact and work effectively with others.  It appeared that he was struggling very hard to deal with his severe discomfort and his mental and emotional difficulties.  

In statement from that adjunct professor, in March 2009, it was reported that he had become friends with the Veteran, even visiting the Veteran at home.  It was again stated that it was quite obvious that the Veteran's great physical pain interfered with his concentration during class and his medications interfered with his ability to focus, such that he sometimes seemed dazed.  He underwent serious struggles with loss of mental focus and had feelings of severe depression on a daily basis.  He also had trouble interacting and working effectively with others.  

In March 2009 the Veteran's mother and father reported that his medication took a toll on his ability to think and use his mind, causing an inability to concentrate and focus.  

Also received in March 2009 were multiple lay statements from friends of the Veteran attesting to the Veteran's having a bad attitude and frustration due to pain

On VA psychiatric examination in April 2009 the Veteran reported that it now took him a very long time to accomplish even a simple task and even longer to recuperate from it.  He had become increasingly angry and short-tempered.  He was first treated for depression in 2001, during service, and reported that medications had not helped him.  He had taken himself off of psychotropic medications about a year ago due to worsening side-effects.  He denied any history of psychiatric hospitalizations or suicide attempts.  He denied a history of substance abuse.  He related that he continued to suffer from poor sleep due to his ongoing pain, anxiety, and tendency to worry.  He had not worked in the last 3 years.  He had extremely limited interpersonal relationships.  He was unable to drive due to severe limitation of movement of his neck but was otherwise independent in performing his activities of daily living.  He was worried about becoming addicted to narcotic medications prescribed for his progressively worsening pain.  He was currently studying to obtain a Bachelor's Degree.  He received Social Security Administration disability benefits due to his depression and neck problems.  He lived with his wife and two children.  He used to enjoy hunting, camping, hiking, and automobile restoration as hobbies but had not been able to pursue any of these activities for the last three to four years.  

On mental status examination the Veteran was casually and appropriately dressed.  He was cooperative and verbal.  He made moderate eye contact.  His speech was of moderate rate, pitch and volume, with good clarity.  His affect was constricted but appropriate to the ideation and the situation.  His mood was rather sad and anxious but not irritable.  He was coherent, relevant, and goal-directed.  He denied suicidal and homicidal ideation, but admitted to feeling depressed.  He denied auditory and visual hallucinations.  His sensorium was clear.  He had fair concentration and attention span.  His memory was fair.  He was fully oriented.  He had a fair fund of knowledge and could solve simple mathematical problems.  He was fairly abstract in his thinking.  His judgment and insight were fair.  

The diagnosis was moderate recurrent major depressive disorder.  His GAF score was 50.  The examiner's impression was that the Veteran continued to suffer from signs and symptoms of major depression which had caused severe impairment in his social, occupational, and interpersonal functioning such that he was currently unemployable.  He was competent to handle his own financial affairs.  

Analysis

The Board is aware of the recent April 2009 opinion of a VA psychiatric examiner that the service-connected psychiatric disorder caused the Veteran to be unemployable.  However, it must also be noted that this examiner described the disorder as being productive of only severe social, occupational, and interpersonal impairment.  Moreover, that examiner found that the Veteran's GAF score was 50 which indicates serious but not profound impairment.  Further, that GAF score is consistent with the absence of impaired reality testing.  Moreover, the evidence is otherwise devoid of evidence of the level of symptomatology associated with a 100 percent schedular rating.  Specifically, there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  For example, in the January 2006 and March 2006 VA examination reports, the examiner stated the Veteran was alert and fully oriented.  In the March 2006 VA examination report, the Veteran reported having good family relationships.  The examiner stated the Veteran's thought processes were logical, goal directed, and relevant.  In the April 2009 VA examination report, the examiner stated the Veteran was coherent, relevant, and goal directed.  The Veteran denied having any auditory or visual hallucinations.  He was fully oriented.  None of the examiners or medical professionals who have seen the Veteran has provided a description of his symptoms that remotely resemble the level of severity described in the 100 percent evaluation.  Also, despite difficulties, he has been able to take college level courses of education.  

Thus, despite the opinion of the recent VA psychiatric examiner, a schedular rating of 100 percent is not warranted since December 19, 2005. 

Spinal Rating Criteria

Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness.  Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Also with any form of arthritis, painful motion is factor to be considered.  Painful motion of a joint with peri-articular pathology is to be at rated at least at the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  

The criteria for evaluating intervertebral disc disease (IVDS), also called disc disease, were revised effective September 23, 2002, and renumbered under 38 C.F.R. § 4.71a, Diagnostic Code 5293 as Diagnostic Code 5243.  

The criteria for evaluating spinal disabilities, other than IVDS, under 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295 ("the former criteria") were revised effective September 26, 2003, at which time the diagnostic codes were renumbered, including creating Diagnostic Code 5235 for vertebral fracture or dislocation.  

Because in this case the claim for increased ratings was received after the change in the IVDS rating criteria and the after the change in the criteria for rating spinal disabilities, other than IVDS, only the amended criteria may be applied.  VAOGCPREC 3-2000 (Apr. 10, 2000).

IVDS Criteria

Under the amended Diagnostic Code 5243, IVDS or disc disease, is rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations, whichever method results in the higher rating.  

With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted.  With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted.  

Note 1 to the revised Diagnostic Code 5293 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician.  Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician.  If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes.  67 Fed. Reg. 54345, 54347 (August 22, 2002).

Under both the former and the amended IVDS criteria, separate evaluation of the orthopedic and neurologic components of a spinal disability, for combination under 38 C.F.R. § 4.25, was permissible.  See Bierman v. Brown, 6 Vet. App. 125 (1994).  However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14 - which prohibits "[t]he evaluation of the same disability under various diagnoses."  See Brady v. Brown, 4 Vet. App. 203, 206 (1993).  See also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another).  Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS.  

Under 38 C.F.R. § 4.20, in rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, Diagnostic Code 7115").  

Peripheral neuropathy which is wholly sensory is mild or, at most, moderate.  With dull and intermittent pain in a typical nerve distribution, it is at most moderate.  With no organic changes it is moderate or, if of the sciatic nerve, moderately severe.  With loss of reflexes, muscle atrophy, sensory disturbance, and constant pain that at times is excruciating, it is at most severe.  Peripheral nerves ratings are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  38 C.F.R. §§ 4.123, 4.124, 4.124a.  

"'Sciatic' refers to the sciatic nerve; sciatica is used to refer to 'a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by prolapse of the intervertebral disk' the term is also used to refer to pain anywhere along the course of the sciatic nerve'."  Ferraro v. Derwinski, 1 Vet. App. 326, 329-30 (1991).  

Sciatic neurological manifestations are rated under Diagnostic Code 8520 as paralysis of the sciatic nerve.  The criterion for a 10 percent rating is mild incomplete paralysis.  The criterion for a 20 percent is moderate incomplete paralysis and 40 percent when moderately severe.  When severe with marked muscular atrophy, 60 percent is warranted and 80 percent is warranted for complete paralysis (with foot drop, no active movement possible below the knee, and weakened or, very rarely, lost knee flexion).  See also 38 C.F.R. § 4.124a, Diagnostic Codes 8620, 8720 (for sciatic neuritis and neuralgia). 

The maximum for complete neuropathy of lower extremity peripheral nerves other than the sciatic nerve (Diagnostic Codes 8520 through 8530) is no more than 40 percent and only when there is motor impairment.  

General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula)

The amended spinal rating criteria created a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) which by encompassing symptoms such as pain (radiating or not), stiffness, and aching takes those into account, removing any requirement that there be such symptoms for any particular rating.  68 Fed. Reg. at 51454 - 51455 (August 27, 2003).  

The thoracolumbar and cervical spinal segments are rated separately except when there is unfavorable ankylosis of both spinal segments, i.e., the entire spine, which is rated as a single disability.  Note 6 to the General Rating Formula.  

The General Rating Formula provides ratings based on limited spinal motion in either forward flexion or the combined ranges of motion of a spinal segment, or for either favorable or unfavorable ankylosis, or with respect to the entire spine a loss of more than 50 percent vertebral body height due to vertebral fracture or muscle spasm and guarding.  

Cervical Spine Criteria

Under the amended spinal General Rating Formula provides that for a cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), spondylolisthesis or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), 5241 spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (see also diagnostic code 5003) (Diagnostic Code 5242) a 30 percent rating is warranted when forward flexion of the cervical spine is to 15 degrees or less; or if there is favorable ankylosis of the entire cervical spine.  For the next higher, and maximum, schedular rating of 40 percent there must be unfavorable ankylosis of the entire cervical spine.  

Note (2) of the spinal rating criteria provides that for calculation of combined range of motion the maximum motions of the cervical spine are 45 degrees of forward flexion, 45 degrees of backward extension, 45 degrees of lateral bending either to the right or the left, and 80 degrees of rotation either to the right or left and the normal combined range of motion shall be 340 degrees.  

Note (5) of the spinal rating criteria provides that  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 or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  

Cervical Spine In Excess of 30 percent prior to April 27, 2006

Background

In a letter received in November 2005 from a private physician it was reported that in June 2002 the Veteran had undergone cervical discectomy with fusion at C5-6 due to cervical degenerative disc disease.  

In a July 2004 report from the New Jersey Center for Pain Management it was noted that the Veteran had neither shortness of breath nor any gastrointestinal problems (although a history of a duodenal ulcer was diagnosed).  He had fair range of motion of the cervical spine in all planes with some modest reduction in right rotation upon the extreme of that motion.  Records of his continued course of treatment for pain at that facility are on file.  

The reports of cervical CT scans and MRIs in 2004 and 2005 are on file, and reflect degenerative disc disease and postoperative changes in the cervical spine. 

A November 15, 2005, report from the New Jersey Center for Pain Management it was reported that the Veteran was scheduled for vocational retraining because he could no longer work as a mechanic secondary to pain.  It was felt that he had continued cervical radicular pain secondary to a herniated nucleus pulposus (HNP) at C4-5 in addition to degenerative disc disease and neuroforaminal stenosis.  This was a pre-existing condition but seemed to be exacerbated by a September 2004 vehicular accident and as a result of this injury he was required to attend vocational retraining because he could no longer work as a mechanic secondary to dramatically increased pain.  

On VA examination in December 2005 the Veteran had active cervical motion of 70 degrees of flexion, 14 degrees of extension, right lateral bending to 21 degrees, left lateral bending to 27 degrees, right rotation to 81 degrees, and left rotation to 67 degrees.  

On VA examination in January 2006 it was noted that the Veteran did not have visual dysfunction related to his cervical spine disorder.  He reported having had diagnostic testing which revealed herniated discs at C3-4, C4-5, and C6-7.  He had obstipation due to a side effect of opioid medication.  On examination the position of his head was normal and his cervical ankylosis was in a neutral position.  Active cervical flexion was to 70 degrees, and passively it was to 77 degrees.  Resisted activities were not tested due to increased pain.  X-rays of the cervical spine revealed no subluxations.  

Dr. K evaluated the Veteran in January 2006.  The Veteran complained of neck pain which was predominantly right sided, and pain or numbness into the arms, bilaterally.  A 2004 EMG had revealed mild right C8-T1 and C5-6 radiculopathy with acute and chronic counterparts as well as mild chronic left C5 radiculopathy and mild bilateral focal ulnar neuropathy at the cubital tunnel.  More recent EMGs showed severe left median mononeuropathy at the carpal tunnel, moderate right median ulnar neuropathy, i.e., carpal tunnel syndrome.  He reported that none of his cervical paraspinal muscles had undergone EMG testing.  In reviewing the values of testing, there was significant carpal tunnel on the left but the "left" sided carpal tunnel syndrome seemed to be milder.  A cervical MRI had found evidence of prior discectomy and spinal fusion at C5-6 with small broad-based central disc protrusion at C4-5 and minimal broad-based disc at C6-7.  Subsequent tests revealed an annular tear at C4-5 and findings suggestive of annular fusion of two vertebral bodies.  There was full fusion at C5 and C6 and there was evidence of a small central herniation at C6-7.  He was independent in ambulation as well as in activities of daily living.  He reported having constipation.   

On examination, testing of the Veteran's cranial nerves revealed no visual dysfunction.  His tongue was in the mid-line and without evidence of atrophy of fasciculation.  He had tenderness and spasms in the cervical and trapezius regions. He had poor posture, with protracted shoulders and a forward flexed cervical region.  Abductor and flexor strengths were 4/5 - 4+/5 in the right arm and 5/5 in the left arm.  Bilateral elbow flexors and grip strengths were 5/5.  He had full active and full passive motion of all joint in all planes of motion.  There was no tremor or pronator drift of his outstretched arms.  Finger-to-nose and finger-to-nose-to-finger tests were intact and repetitive alternating motions were intact.  He had a negative Tinel's sign, negative Phalen's sign but had a positive Tinel's sign over the right cubital tunnel.  Deep tendon reflexes in the upper and lower extremities were 2+.  He had diminished pinprick sensation around the right thumb and the right medial forearm.  The diagnoses were cervical myofascial pains with bilateral upper extremity radicular symptoms and status post cervical discectomy and fusion with present test findings of continued disc herniation; and reported carpal tunnel syndrome, predominantly worse on the left.  

On VA examination in March 2006 the Veteran had no visual defect or obstipation related to his cervical spine disorder.  There was no indication of unfavorable ankylosis. 

A July 2006 statement from Dr. B. R. R. indicates that the Veteran had anterior cervical decompression with fusion on April 27, 2006 at C4-5 and a vertebrectomy with allograft from the right hip at C4-5.  


Analysis

Here, there are no records of the need for bed rest prescribed by a physician prior to April 27, 2006.  Accordingly, the next higher evaluation of 40 percent is not warranted on the basis of incapacitating IVDS episodes.  

Thus, the cervical spine disorder must be rated, for possible combination with neurological complications, on the basis of the schedular spinal rating criteria.  In this regard, the Veteran is additionally service-connected for cubital tunnel syndrome of the left upper extremity with ulnar neuropathy, rated 10 percent disabling, as well as for cubital tunnel syndrome of the right upper extremity with ulnar neuropathy, rated 10 percent disabling.  These are due to the service-connected cervical spine disorder and when these are combined with the 30 percent rating for cervical spine disability, the result is a combined disability rating of 43 percent.  Because these disorders are assigned separate disability ratings, they may not be considered in assigning a 40 percent rating for the service-connected cervical spine disorder.  Moreover, assigning a separate rating of 40 percent for the cervical spine disorder (inclusive of the cubital tunnel syndrome with ulnar neuropathy of each upper extremity) would not result in a higher combined disability rating because, as stated these disorders already combine to a combined disability rating of 43 percent.  See 38 C.F.R. § 4.25 (2010).  

In a nonprecedential single judge decision of Lewis v. Derwinski, 3 Vet. App. 259, 260 (1992) it was held that 38 C.F.R. § 4.71a, Diagnostic Code 5289, in effect prior to revision of the schedular criteria for rating spinal disabilities, "provides on its face that no more than two joint within a spinal segment need be immobilized in order to warrant a rating thereunder.  Thus, immobilization of all joints within a segment (complete ankylosis) is not needed for the assigned of such a rating."   Before the revision of the criteria for rating spinal disabilities, under 38 C.F.R. § 4.71a, Diagnostic Code 5287 ankylosis of the cervical spine when favorable warranted a 30 percent rating and when unfavorable warranted a 40 percent rating.  

Here, assuming that the fusion of only two of the cervical vertebrae would warrant an evaluation based on ankylosis of the cervical spine, it must also be shown that such ankylosis results in additional functional impairment, as specified above.  

In this case, however, there is no evidence that any fused cervical vertebrae causes difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; atlantoaxial or cervical subluxation or dislocation.  

While the Veteran at times has had some gastrointestinal symptoms, these are shown to be side-effects of medication.  They are not gastrointestinal symptoms due to pressure of the costal margin on the abdomen; nor dyspnea or dysphagia due to cervical fusion.  The Veteran has had obstipation.  Obstipation is intractable constipation.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, page 1164 (27st ed.).  However, the 2006 VA examination noted that this was a side effect of medication and, thus, it is not a gastrointestinal symptom attributable to the service-connected cervical spine disorder.  

In sum, the evidence simply does not demonstrate that the Veteran has 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, or dyspnea or dysphagia due to the C5-6 fusion. 

Accordingly, a rating in excess of 30 percent for the service-connected cervical spine disorder prior to April 27, 2006, is not warranted.  

Cervical Spine In Excess of 30 percent since August 1, 2006

An April 5, 2006, SSA evaluation noted that the Veteran reported following his cervical fusion he had had good results for approximately 3 years but began having worse neck symptoms, without any new injury, in about 2005.  After a discogram he was told that 3 discs were contributing to his pain complex.  The pattern of this pain was numbness and tingling in the posterior and medial portions of the neck and the medial aspect of an arm.  An MRI had revealed an annular tear at C3-4 and a herniated disc at C4-5, which was causing spinal cord compression on the right.  He had been taking opioid medication for about 7 years, as well as other medications, including over-the-counter medications.  He was scheduled to have further cervical surgery in April 2006 for the C4-5 herniation.  He had been a diesel mechanic his whole life but had been unable to work since December 16, 2005.  

On physical examination muscle stretch reflexes were symmetrically preserved in both upper extremities.  There was no clonus.  Hoffman's sign was negative.  Motor power was grossly intact to manual muscle testing.  Cervical flexion and extension were to 20 degrees. Lateral bending of the neck was to 20 degrees to the right and to 15 degrees to the left.  Cervical rotation was to 35 degrees to the right and to 40 degrees to the left.  The diagnoses included C4-5 central disc protrusion with spinal cord compression; chronic neck pain; opioid dependence, and pain disorder associated with psychological factors as well as general medical condition (formally chronic pain syndrome).  

On VA examination in February 2007 the Veteran's medical records, although not his claims files, were reviewed.  It was noted that he had had anterior cervical fusion in April 2005.  Currently he took medication and used a TENS unit.  The side-effects of medication were stomach upset and insomnia.  He had not had any falls, unsteadiness, dizziness or visual dysfunction.  It was reported that he had a history of fatigue, stiffness, spasms, and pain but no weakness.  He had constant moderate pain in the mid-neck with radiation into the left upper extremity and occasionally into the right upper extremity.  He had occasional severe flare-ups which occurred weekly and lasted for hours, during which it hurt to move, such as getting in and out of a car.  

On examination there was no spasm, atrophy, guarding, pain on motion or weakness of the Veteran's cervical sacrospinalis muscles but there was tenderness.  It was further noted that there were no spasms which caused an abnormal gait or abnormal spinal contour.  His gait, posture, and head position were normal and there was a symmetrical appearance.  There was no spinal gibbus, kyphosis, or listing.  There was also no lumbar lordosis, scoliosis, or reverse lordosis.  There was 5/5 strength of the tested muscles of the elbow, wrists, and fingers with no muscle atrophy and with normal muscle tone.  Position sensation and vibratory sensation were 2/2 in the upper extremities and sensation to light touch and to pinprick were 1/2, bilaterally. Reflexes were 2+ in the upper extremities.  There was no spinal ankylosis.  Active flexion was to 21 degrees and passively it was to 25 degrees.  There was pain at the end ranges of passive flexion.  Extension was to 20 degrees, both actively and passively.  Lateral flexion actively was to 20 degrees to the right and to 25 degrees to the left but to 30 degrees passively in each direction.  Active rotation to 57 degrees to the right and to 66 degrees to the left, and passively it was to 60 degrees to the right and to 70 degrees to the left.  Repetitive range of motion did not impact clinically, due to pain, upon the range of motion.  

The examiner reported that the Veteran's limitations of the cervical spine were moderate in nature.  The loss of cervical motion would most likely have an impact on physical functional mobility which required any type of combination of motions of the cervical spine.  He was capable of using his upper extremities to work above his head, but it was likely that any type of resistance or repetition would cause increased pain and decreased function over time.  

In February 2007 the Veteran's wife reported that the Veteran's major issues included pain from his degenerative disc disease.  His pain kept him awake at night and he had difficulty arising from bed in the morning due to stiffness and pain.  He had difficulty with even simple tasks.  He was unable to do most home repairs for any length of time.  He was unable to continue full-time employment.  He did minor building maintenance and other janitorial duties, which was hard to cope with knowing his abilities.  His driving for more than 30 minutes was a problem and he had bought her a riding mower to mow the lawn.  He was unable to enjoy his hobbies and interests due to everything he was going through.  

On VA examination in March 2009 the Veteran's claim files and medical records were reviewed.  It was reported that the Veteran's spinal condition had progressively worsened.  He had not had numbness or paresthesia.  He had not had visual dysfunction or any falls, dizziness or unsteadiness.  Also, he had not had obstipation.  It was reported that the Veteran had no flare-ups of his back symptoms but had mild stiffness and mild weakness with moderate fatigue and moderate decreased motion.  He complained of severe neck spasm.  

On examination the Veteran's posture and head position were normal.  There was a symmetrical appearance of his spine.  His gait was normal.  There was no abnormal spinal curvature, i.e., no gibbus, kyphosis, listing, lumbar flattening, lumbar lordosis, or reverse lordosis.  There was no ankylosis of the cervical spine and the cervical spine was in a neutral position.  There were no indications of unfavorable ankylosis.  There was no spasm, atrophy, guarding, painful motion, tenderness or weakness of the left and right cervical sacrospinalis muscles.  There was no muscle spasm on objective examination.  

Flexion of the cervical spine, actively, was to 70 degrees and passively it was to 77 degrees.  Active extension of the cervical spine was to 14 degrees and passively it was to 18 degrees.  Right lateral bending active was to 21 degrees and passively it was to 29 degrees.  Left lateral bending actively was to 27 degrees and passively it was to 33 degrees.  Right rotation actively was o 81 degrees and passively it was to 90 degrees.  Left rotation actively was to 67 degrees and passively it was to 78 degrees.  He had full strength in the tested muscles of the elbows, wrists, fingers, knees, and ankles.  He had full strength in the flexor and extensor muscles of the hips.  Muscle tone was normal.  Sensations and reflexes were normal in all extremities.  

Analysis

Here, there are no records of the need for bed rest prescribed by a physician since August 1, 2006.  Accordingly, the next higher evaluation of 40 percent is not warranted on the basis of incapacitating IVDS episodes and, so, the cervical spine disorder must be rated, for possible combination with neurological complications, on the basis of the schedular spinal rating criteria.  As previously explained, separated 10 percent ratings are assigned for cubital tunnel syndrome of each upper extremity with ulnar neuropathy.  

Again assuming that the fusion of only two of the cervical vertebrae would warrant an evaluation based on ankylosis of the cervical spine, it must also be shown that such ankylosis results in additional functional impairment, as specified above.  However, there is no evidence that any fused cervical vertebrae causes difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; atlantoaxial or cervical subluxation or dislocation.  

In sum, the evidence simply does not demonstrate that the Veteran has 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, or dyspnea or dysphagia due to the C5-6 fusion. 

Accordingly, a rating in excess of 30 percent for the service-connected cervical spine disorder since August 1, 2006, is not warranted.  

Thoracolumbar Spine Criteria

Note 2 to the General Rating Formula provides that normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The sum of these is the combined range of motion, which for the thoracolumbar spine is 240 degrees.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note 5 of the General Rating Formula.  

A 20 percent rating is warranted for limited thoracolumbar motion when forward flexion is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees (the maximum combined range of motion being 240 degrees); or if there is either (1) muscle spasm or (2) guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent rating is warranted for limited thoracolumbar motion when forward flexion is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine; 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine.  

Mechanical Low Back Pain in Excess of 10 percent prior to April 5, 2006

On VA examination in January 2006 the Veteran's gait was normal and there was no spinal listing, scoliosis and no lumbar flattening, lumbar lordosis or reverse lordosis.  He had moderately limited lumbar motion with increased pain with repetitive activities but motion was not recorded in degrees of motion.  

On VA physical therapy examination in March 2006 the Veteran had active pain free lumbar flexion to 84 degrees.  Active extension was to 12 degrees.  Active rotation was to 73 degrees to the right and to 67 degrees to the left, with lateral bending of 28 degrees to the right and to the left (for a combined range of motion of active motion to 292 degrees).  Repetitive flexion, extension, and rotation had no impact of range of motion in his pain-free arc of motion.  He had moderate limitations of the lumbar spine which would affect his mobility.  

Dr. K evaluated the Veteran in January 2006.  The Veteran complained of low back pain going into the right gluteal region.  Since he had not been at work he had not had any tingling in his feet after standing or a lot of heavy work.  A past lumbar MRI had revealed mild diffuse disc bulging and mild facet arthropathy at L3-4, L4-5, and L5-S1.  He was independent in ambulation as well as in activities of daily living.  He denied any bowel or bladder incontinence or saddle distribution of numbness but did report having constipation.  He reported that urine sometimes leaked after he thought he was through urinating.  

On examination the Veteran had tenderness and spasm in the mid to lower lumbar region, particularly on the right, into the gluteal region.  Lumbar flexion was to 70 degrees and extension was to neutral.  He had full active and full passive motion of all joint in all planes of motion.  As to his lower extremities, there was normal bulk and note and muscle strength was 5/5.  Straight leg raising was negative to 70 degrees, bilaterally.  Deep tendon reflexes in the upper and lower extremities were 2+.  He had diminished pinprick sensation over the right L5 distribution.  As to his gait, he ambulated without assistive devices or gait deviation.  

The diagnosis was lumbar myofasical pains with prior lumbar radicular symptoms.  

On VA examination in March 2006 the Veteran had no indication of unfavorable ankylosis.  No kyphosis, listing or scoliosis of the lumbar spine was found and there was no lordosis or reverse lordosis.  Reportedly, he had muscle spasm in the low back but his gait was normal and on physical examination no muscle spasm in the thoracolumbar area were detected. 

Analysis

Here, the evidence shows that prior to April 5, 2006, the Veteran's lumbar flexion was not less than to 70 degrees and his combined range of motion, in all planes, on examination in March 2006 was 292 degrees.  Moreover, there was no evidence of abnormal gait or abnormal spinal contour.  Accordingly, prior to April 5, 2006, an evaluation in excess of 10 percent was not warranted for mechanical low back pain.  

Mechanical Low Back Pain in Excess of 20 percent since April 5, 2006

An April 5, 2006, SSA evaluation noted that the Veteran had a longstanding history of chronic low back pain but had not had surgery, although he had had numerous interventions, including rhizotomies and epidural steroid injections.  He was managed by a chronic pain specialist.  He had diffuse low back and mid-back pain, with associated numbness and tingling in the left buttock and testicle.  He had been told he had an L5-S1 bulging disc with nerve compression.   He had taken opioid medication for about 7 years, as well as other medications, including over-the-counter medications.  He complained of difficulty with urination and constipation.  

On physical examination muscle stretch reflexes were symmetrically preserved in both lower extremities.  There was no clonus.  Hoffman's sign was negative.  Motor power was grossly intact to manual muscle testing and heel-and-toe walking.  Lumbar flexion was to 60 degrees and lateral bending was to 20 degrees in each direction but there was no report of range of motion in extension or rotation of the lumbar spine.  It was noted that functionally he was able to sit and stand without any antalgic gait.  He could sit for about 15 minutes.  The diagnoses included chronic low back pain; opioid dependence, and pain disorder associated with psychological factors as well as general medical condition (formally chronic pain syndrome).  

On VA examination in March 2009 the Veteran's claim files and medical records were reviewed.  It was reported that his spinal condition had progressively worsened such that he now had bladder dysfunction.  However, upon a review of his systems it was reported that he had never had urinary incontinence, frequency, urgency or urinary retention.  He had not had erectile dysfunction, fecal incontinence, leg or foot weakness.  He had not had numbness or paresthesia.  He had not had visual dysfunction or any falls, dizziness or unsteadiness.  Also, he had not had obstipation.  

It was reported that the Veteran had no flare-ups of his back symptoms but had mild stiffness and mild weakness with moderate fatigue and moderate decreased motion.  He complained of severe low back spasm.  He also reported having low back pain which radiated down the right leg.  He did not use any ambulatory aids or devices.  He was able to walk for more than a quarter of a mile but less than 1 mile.  

On examination the Veteran's gait was normal.  Circumferential measurements of the mid-thighs and mid-calves were without any difference.  There was no abnormal spinal curvature, i.e., no gibbus, kyphosis, listing, lumbar flattening, lumbar lordosis, or reverse lordosis.  There was no spasm, atrophy, guarding, painful motion, tenderness or weakness of the left and right thoracic sacrospinalis muscles, or the left and right lumbar sacrospinalis muscles.  There was no muscle spasm on objective examination.  

The Veteran had pain free lumbar flexion actively to 84 degrees and passively to greater than 90 degrees.  Active extension was to 12 degrees and passively it was to 20 degrees.  Right rotation was to 73 degrees actively and passively.  Left rotation was to 67 degrees actively and to 77 degrees passively.  Right lateral bending actively was to 28 degrees and passively it was to 35 degrees.  Left lateral bending actively was to 28 degrees and passively it was to 39 degrees.  He had full strength in the tested muscles of both knees and ankles.  Muscle tone was normal.  Sensation and reflexes were normal in all extremities.  

Repetitive motions with lumbar flexion and extension, and rotation, did not have any clinical impact upon range of motion testing in his pain-free arc of movement.  He was capable of lifting 40 to 50 pounds from the floor to waist height without any clinical impact upon his pain-free act of movement.  He had increased pain in his low back at the end ranges of flexion, extension, rotation, and right lateral bending.  He had moderate limitations in function of his lumbar spine which affected his "mobility function."  

Analysis

Since April 5, 2006, the evidence does not demonstrate that the Veteran has ankylosis, favorable or unfavorable to the thoracolumbar spine or unfavorable ankylosis of the entire spine.  Further, forward thoracolumbar flexion has not been to less than 60 degrees, and certainly not limited to the 30 degrees or less of forward flexion required for the next higher schedular rating of 40 percent.  Accordingly, since April 5, 2006, an evaluation in excess of 20 percent has not been warranted for mechanical low back pain.  

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). 

If the criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required.  Thun, supra. 

Comparing the Veteran's current disability levels and symptomatologies to the Rating Schedule, the degree of disability for the service-connected disorders at issue are contemplated by the Rating Schedule and the assigned schedule rating is adequate.  To the extent that the combined effect of the service-connected disorders is to cause marked interference with his employment, he has been assigned a TDIU rating which encompasses unemployability due to the combined impact of his service-connected disorders.  Thus, no referral for extraschedular consideration is required.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Lastly, since the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply.  38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The benefits sought on appeal are accordingly denied.  

ORDER

The application to reopen the claim for service connection for a right hip disorder is denied.

The application to reopen the claim for service connection for a left hip disorder is denied. 

Entitlement to a rating for major depression in excess of 50 percent prior to December 19, 2005, and to a rating in excess of 70 percent thereafter is denied.  

Entitlement to a rating for degenerative disc disease of the cervical spine, to include postoperative residuals of cervical spine surgery, in excess of 30 percent prior to April 27, 2006; and to a rating in excess of 30 percent since August 1, 2006, is denied.  

Entitlement to a rating for chronic mechanical low back pain in excess of 10 percent prior to April 5, 2006, and to a rating in excess of 20 percent thereafter is denied. 


REMAND

The claim for a temporary total disability evaluation based on convalescence following private cervical spine surgery in June 2002 was denied by the April 2006 decision.  The basis of the denial was that the claim was not received until November 2005, i.e., that the claim was not received within one year of the private June 2002 cervical spine surgery.  The April 2007 Statement of the Case (SOC) (at page 24) paraphrased 38 C.F.R. § 3.400(o)(2) which provides the rule for determining effective dates for claims for an increased rating, i.e., the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, date of receipt of claim.  

However, the Board observes that the regulation governing the effective dates for claims for a temporary total rating based on need for convalescence is 38 C.F.R. § 3.401(h)(2) (date of entrance into hospital, after discharge from hospitalization (regular or release to non-bed care).  38 C.F.R. § 3.401(h)(2) places no limitation on when a claim for a temporary total disability evaluation based on convalescence may be filed.  

In this regard, 38 U.S.C. § 5110(a) provides that "[u]nless specifically provided otherwise [italics added] in this chapter [38 U.S.C. §§ 5100, et. seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  

Likewise, 38 C.F.R. § 3.400 provides that "[e]xcept as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later."  

38 C.F.R. § 3.401(h)(2) provides otherwise and states that the effective date for temporary total disability ratings based on need for convalescence will be "[d]ate of entrance into hospital, after discharge from hospitalization (regular or release to non-bed care)."  

Accordingly, there is no requirement that a claim for a temporary total rating based on need for convalescence, under 38 C.F.R. § 4.30, must be filed within one year of the Veteran's June 2002 surgery, even if the claim for benefits under 38 C.F.R. § 4.30 was first received (as concluded by the RO) in November 2005.  

Accordingly, the claim for a total disability evaluation based on convalescence following private cervical spine surgery in June 2002 is REMANDED for the following action:

1.  Readjudicate the claim for a temporary total disability evaluation based on convalescence following private cervical spine surgery in June 2002 in light of the foregoing.  

2.  If the determination remains unfavorable to the Veteran, he should be furnished an SSOC and he and his representative must be given an opportunity to respond thereto. 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
Alexandra P. Simpson
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs