Citation Nr: 1131663 Decision Date: 08/29/11 Archive Date: 09/07/11 DOCKET NO. 08-07 406 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to an evaluation in excess of 20 percent for the service-connected residuals of a fracture of the cervical spine, status-post fusion ("cervical spine disability"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the RO. The claim on appeal has been recharacterized as it appears on the cover page of the instant decision. The Veteran appealed from a March 2008 rating decision, which denied service connection for left upper extremity weakness and numbness and osteoarthritis of the right knee secondary to the service-connected cervical spine disability. A Statement of the Case (SOC) was issued in August 2008. The Veteran did not perfect his appeal, and as such, the claims are no longer in appellate status. 38 C.F.R. § 20.302(b). The Veteran presented testimony at a hearing held at the RO in April 2008. The transcript has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. The service-connected cervical spine disability currently is shown to be productive of a disability picture manifested by a functional loss due to pain that more nearly approximates that of forward flexion being limited to 15 degrees or less; unfavorable ankylosis is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of an increased evaluation of 30 for the service-connected cervical spine disability have been met. 38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.71a including Diagnostic Codes 5003, 5235-5243 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2010). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA complied with notification responsibilities in regards to the Veteran's claim for in correspondence sent to the Veteran in July 2006. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Notice pursuant to the Dingess decision was included in this letter. An additional letter was sent to the Veteran in May 2008, which notified him of the criteria necessary to support a higher evaluation. The claim was last readjudicated in an August 2008 Supplemental Statement of the Case (SSOC). VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The information and evidence currently associated with the claims file consists of the Veteran's service treatment records, post-service private and VA medical records, reports of VA examination, and the transcript from the April 2008 RO hearing. The Veteran has not identified any other evidence which has not been obtained. In fact, he indicated in August 2006 that he had no additional evidence to submit in support of his claim. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2009); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any deficiency in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). III. Analysis The Board has carefully reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Historically, service connection was awarded for the cervical spine disability in a July 1966 disability rating decision. An initial 20 percent evaluation was assigned effective from March 1966. The 20 percent rating has been in effect since that time and is a protected rating. The Veteran filed the instant claim for increase in June 2006. The RO continued the 20 percent rating in a December 2006 rating decision. The Veteran disagreed with the continued 20 percent rating and initiated the instant appeal. At the outset, the Board would note that effective September 26, 2003, revisions were made to the VA rating schedule, which established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458. (August 27, 2003). The Veteran filed his claim in June 2006. Thus, only the regulations effective September 26, 2003, apply to this claim. The Veteran's cervical spine disability has been assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5235, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a (2010). Under Diagnostic Code 5235, vertebral fracture or dislocation, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, is assigned a 20 percent rating for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id An increased rating to 40 percent is warranted when a disability is manifested by the following criteria: unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. The Veteran's cervical spine disability has also been rated under Diagnostic Code 5003 for degenerative arthritis based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Aside from the General Rating Formula For Diseases and Injuries of the Spine, there are other provisions for rating disability of the spine when certain manifestations are present. These include incapacitating episodes and neurological problems. The Board has considered whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the cervical spine under the diagnostic codes pertinent to rating neurological disorders. There were, however, no compensable neurological disabilities (paralysis of the sciatic nerve) associated with the cervical spine disability. 38 C.F.R. § 4.124a, Diagnostic Code 8520). While JAM, D.O., indicated there was some disc space narrowing at C5-6 in his April 2008 report, at no time has there been evidence of incapacitating episodes of intervertebral disc syndrome as defined by the statute to warrant a higher rating under Diagnostic Code 5243. Id. The Veteran had a fusion at C3-4, C4-5, during service. The Board notes that service connection for left upper extremity weakness and arm numbness has been previously denied by the RO in August 2002 and most recently in March 2008. That aside, the January 2008 VA examiner found no neurological involvement despite complaints of left arm numbness and tingling. A sensory examination was negative, and there were no objective findings of peripheral neuropathy. There was also no bowel or bladder impairment. The Veteran denied having any incapacitating episodes in the past 12 months. JAM, D.O., indicated the Veteran had foramina stenosis at C4-5 that might be responsible for increasing left arm complaints, but had remained reasonably functional. There was no evidence of incapacitating episodes. JAM, D.O., further indicated that the Veteran had signs of left rotator cuff tendonitis with impingement that did not appear to be related to his cervical spine disability. Thus, the Board shall consider the service connected disability under the orthopedic diagnostic codes (under the General Rating Formula For Diseases and Injuries of the Spine) only. Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the service-connected cervical spine disability picture is shown to more nearly resemble the criteria for a 30 percent rating, to include for "staged" ratings. 38 C.F.R. § 4.7; See Hart, supra. Upon VA examination in January 2008, the Veteran complained of neck pain, worse with turning his head and sleeping. He indicated that he had pain six out of seven days. He also reported stiffness. He denied fatigue or weakness. The Veteran informed the examiner that he retired from the phone company in 2000. He endorsed having increased pain with cold weather and repetitive movement. The Veteran reported having had flare-ups once per week. He did not know what precipitated the flare-ups. Pain was alleviated by rest and Motrin. The Veteran's range of motion was as follows: forward flexion was from 0 to 25 degrees; extension was from 0 to 25 degrees; right lateral flexion was from 0 to 20 degrees; left lateral flexion was from 0 to 10 degrees; right lateral rotation was 0 to 40 degrees; and left lateral rotation was 0 to 20 degrees. There was pain reported at end of all range of motion. There was no fatigue or weakness on range of motion. The Veteran reported lack of endurance, which was subjectively limited to rotation type movements. There was no evidence of spasm, weakness or tenderness. The X-ray studies showed fusion of C3-4 and C4-5. The neural foramina were maintained. There was some straightening of the cervical lordosis. An April 2008 treatment note from JAM, D.O., indicated that cervical range of motion was mild to moderately limited, but that the neck was functional. JAM, D.O., indicated the Veteran had done well since the 1960's cervical spine procedure. Considering the Veteran's complaints of flare ups of pain involving his cervical spine, in light of the recent examination findings, the Board finds the Veteran's current overall functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness to be approaching that of flexion of the cervical spine being limited to 15 degrees or less. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. While the Veteran was still able to flex to 25 degrees upon VA examination in 2008, there was pain at the end of all movements. Moreover, he reported having stiffness and flare ups on a regular basis. Clearly, to the extent that the Veteran is shown to be experiencing increased symptoms due to findings of stenosis of the cervical spine, his complaints of pain and limited motion are best addressed by the assignment of a 30 percent rating. Id. In sum, a rating for the service-connected cervical spine disability of 30 percent, to include for "staged" ratings purposes, is warranted. As the evidence does not show symptomatology consistent with incapacitating episodes of intervertebral disc syndrome as defined by the statue or unfavorable ankylosis, a higher evaluation is not applicable in this case. The Court has held that, when evidence of unemployability is presented, the issue of whether a total disability based on individual unemployability (TDIU) will be assigned, should be handled during the determination of the disability rating assigned. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In Rice, the Court determined that there is no freestanding claim for a TDIU rating. Id. at 451. In the instant case, the Veteran has not raised the issue of a TDIU rating. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran retired from the phone company in 2000. As the Veteran has not raised such a claim and there is no objective evidence of unemployability due to the service-connected cervical spine disability, a TDIU rating is not warranted in the instant case. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected cervical spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Here, the schedular criteria are found to reasonably address the nature and extent of the service-connected cervical spine disability in terms his being assigned an increased rating of 30 percent based on a severe functional limitation without evidence of ankylosis. As such, an exception or unusual disability is not demonstrated. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An increased evaluation of 30 percent, but no more for the service-connected cervical spine disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs