Citation Nr: 1302181 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-03 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy prior to April 22, 2008. 2. Entitlement to a disability evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy from April 22, 2008. 3. Entitlement to service connection for carpal tunnel syndrome of the right wrist. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1970 and received numerous awards for his service, including the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantry Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2007, June 2008, and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 20011, the Board remanded the matter so that the Veteran could be afforded a Travel Board hearing at the RO. The hearing took place in August 2012 before the undersigned and a transcript of the hearing is of record. The issues of entitlement to an evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy from April 22, 2008 and entitlement to service connection for carpal tunnel syndrome of the right wrist are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to April 22, 2008, the Veteran's cervical spine disability was most closely characterized by forward flexion of less than 15 degrees for the period on appeal. CONCLUSION OF LAW The criteria for an evaluation of 30 for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy prior to April 22, 2008 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.22, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's cervical spine disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2012). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2012). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran filed the increased rating claim currently on appeal in December 2006. At that time, his service connected cervical spine disability was assigned a 20 percent disability rating under the General Formula. VA outpatient treatment records for the period on appeal note complaints of and treatment for pain associated with the Veteran's service connected degenerative disc disease of the cervical spine and cervical radiculopathy. A VA physical therapy treatment record from August 2006 records the Veteran's forward flexion of the cervical spine as 20 degrees. In May 2007, the Veteran was afforded a VA examination in connection with his claim. The Veteran complained of pain, stiffness, and weakness associated with his cervical spine disability. He reported that he had missed forty eight days of work due to his condition. The Veteran had forward flexion from 0 to 22 degrees, with pain at the end point. His range of motion was not additionally limited following three repetitions. He had no ankylosis or incapacitating episodes due to intervertebral disc syndrome. The Veteran had decreased sensation in the upper extremities. In April 2008, the Veteran was afforded another VA examination of his spine. He complained that his neck pain was worsening and that he had difficulty turning his head over his shoulder while driving. He described numbness and tingling in the right index finger and weakness in both hands. He was generally able to perform activities of daily living, but reported difficulty with tasks requiring fine motor skills, such as buttoning shirts and tying shoes. He reported losing approximately fifty days of work in the past twelve months, approximately $14,000 worth of business. Forward flexion of the cervical spine was from 0 to 10 degrees, with pain throughout the entire range of motion. No additional limitation was observed following repetition. The Veteran had no ankylosis or incapacitating episodes due to intervertebral disc syndrome. The Veteran had some decreased sensation in both upper extremities. The examiner noted that March 2008 electrodiagnostic testing results showed evidence of right carpal tunnel syndrome and that x-ray and MRI results showed degenerative disc disease of the cervical spine with moderately severe central stenosis at the C6-7 level, left sided C7-T1 foraminal narrowing, and slowing bone density over the ventral aspect of the cervical spine possibly representing diffuse idiopathic skeletal hyperostosis. Based on all the above evidence, the Board finds that the Veteran's disability rating should be increased from 20 percent to 30 percent disabling for the period from December 2006 to April 2008. While the April 2008 VA examination is the earliest objective evidence that the Veteran met the criteria for a 30 percent disability rating, the Veteran's forward flexion was already limited to 20 degrees as early as August 2006 and in light of the Veteran's complaints of increasingly limited range of motion, the Board finds it is more likely than not that he actually met the criteria for a higher disability rating sometime between the May 2007 and April 2008 VA examinations. Because it is impossible to determine the exact date this occurred and because the Veteran's range of motion more closely meets the criteria for the 30 percent rather than the 20 percent disability rating for the entire period on appeal, the Board finds that the 30 percent disability rating should be assigned from the date the Veteran filed his increased rating claim. In conclusion, entitlement to a 30 percent disability rating is granted for diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy prior to April 22, 2008. The issue of entitlement to a disability rating in excess of 30 percent for the Veteran's cervical spine disability, to include entitlement to an extraschedular rating, is addressed in the Remand portion of this opinion. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this regard, the Board notes that during the August 2012 Travel Board hearing the Veteran specifically stated that he would be satisfied with the assignment of a 30 percent rating for the period prior to April 22, 2008. As such, the Board finds that the question of whether VA has met its duty to notify and assist the Veteran in this aspect of his claim seems moot. ORDER An evaluation of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy prior to April 22, 2008 is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is also seeking entitlement to an evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy from April 22, 2008, as well as entitlement to service connection to carpal tunnel syndrome of the right wrist. The Veteran was last afforded a VA examination of his cervical spine disability in January 2012. However, at his August 2012 Travel Board hearing, the Veteran testified credibly that his disability had continued to worsen since his examination. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, VA generally has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, in light of the Veteran's testimony that his disability has worsened since his January 2012 VA examination, on remand the Veteran should be afforded a new VA examination of his cervical spine. As part of that examination, the examiner is asked to opine whether it is at least as likely as not that the Veteran's neurological symptoms such as numbness and weakness in the upper and lower extremities are secondary to the Veteran's service connected cervical spine disability. Additionally, at his August 2012 hearing, the Veteran testified that the symptoms of his cervical spine disability, such as pain and numbness in the upper extremities, interfere with his employment. He estimated that he was forced to miss five or six days of work each month due to his disability. The Veteran has presented similar testimony to VA examiners during the period on appeal. At an April 2008 VA examination, the Veteran reported missing approximately fifty days of work over the past twelve months and estimated that this lost time cost his business $14,000. Furthermore, the Veteran has complained of neurological symptoms such as numbness and weakness in the upper and lower extremities which he associates with his cervical spine disability, but which have not been clearly attributed by a medical professional to cervical radiculopathy. Accordingly, the Board finds that there is evidence of an exceptional or unusual disability picture with marked interference with employment, and referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321 is warranted. See Thun v. Peake, 22 Vet. App. 111, 114-15 (2008). Regarding the Veteran's claim for entitlement to carpal tunnel syndrome, the Veteran was afforded a VA examination in connection with this claim in December 2010. Unfortunately, this examination was inadequate for several reasons. First, the examiner concluded that the Veteran did not suffer from carpal tunnel syndrome of the right wrist based on July 1998 and January 2004 nerve conduction studies of the right upper extremity. However, the examiner did not address, and seems to have been unaware of, a March 2008 nerve conduction study which detected median neuropathy of the right upper extremity consistent with carpal tunnel syndrome. Additionally, while the examiner did not diagnose the Veteran with carpal tunnel syndrome, he did diagnose the Veteran with sensory neuropathy of the bilateral fingers and thumbs secondary to advanced osteoarthritis in both hands. The examiner concluded that this disability was not related to the Veteran's active military service, including his shell fragment wounds to the right upper extremity. However, the only explanation for this conclusion was the negative nerve conduction studies in July 1998 and January 2004, which the Board finds to be an inadequate rationale. Accordingly, on remand, the Veteran should be afforded a new VA examination of his right wrist. The examiner is asked to determine whether or not the Veteran suffers from carpal tunnel syndrome of the right wrist, as well as whether it is at least as likely as not (fifty percent or greater) that the Veteran's carpal tunnel syndrome or any other disability of the right wrist or hand had onset in service or was caused or permanently aggravated by the Veteran's active military service, to include his shell fragment wounds to the right upper extremity sustained in service. Accordingly, the case is REMANDED for the following action: 1. Associate all of the Veteran's current VA treatment records with his claims folder. 2. Once this is done, schedule the Veteran for a VA examination of his service connected cervical spine disability. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. As part of that examination, the examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's neurological symptoms such as numbness and weakness in the upper and lower extremities are secondary to the Veteran's service connected cervical spine disability. The examiner should provide a rationale for his or her opinion. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 3. Refer the Veteran's claim for a higher disability rating for his service connected cervical spine disability to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321. 4. The RO should also schedule the Veteran for a VA examination of his right wrist disability. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to determine whether or not the Veteran suffers from carpal tunnel syndrome of the right wrist, as well as whether it is at least as likely as not (fifty percent or greater) that the Veteran's carpal tunnel syndrome or any other disability of the right wrist or hand had onset in service or was caused or permanently aggravated by the Veteran's active military service, to include his shell fragment wounds to the right upper extremity sustained in service. A rationale for his or her opinion must be provided. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 5. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters 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. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs