Citation Nr: 1302191 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-17 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating higher than n 20 percent for cervical strain with traumatic joint disease and discectomy. 2. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1971 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, in February 2011, and in October 2011, the Board remanded the claim for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim for a total disability rating for compensation based on individual unemployability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Cervical strain with traumatic joint disease and discectomy are manifested by flexion that more nearly approximates to 15 degrees without evidence of favorable ankylosis or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating of 30 percent for cervical strain with traumatic joint disease and discectomy have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5242 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 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). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in September 2004, February 2006, March 2006, and, July 2009. The Veteran was notified of the evidence needed to substantiate a claim for increase, namely, a worsening in severity and the effect on employment. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). As for the timing of the VCAA notice, there was partial VCAA notice before the initial adjudication that complied with Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). To the extent the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in July 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and private medical records. The Veteran was afforded VA examinations. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION General Rating Principles A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating for a Disability of the Musculoskeletal System Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The segments of the cervical spine are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria for the Cervical Spine Cervical strain with traumatic joint disease and discectomy are rated 20 percent under Diagnostic Codes 5237 (cervical strain) and 5242 (degenerative arthritis of the spine). The rating criteria for cervical strain, for joint disease, or for discectomy are the same. In other words only one rating is assignable, unless there are associated objective neurologic abnormalities, which may be rated separately. Cervical strain with traumatic joint disease and discectomy are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for next higher rating, 30 percent rating, are forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. The criterion for a 40 percent rating is unfavorable ankylosis of the entire cervical spine. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least four weeks, but less than six weeks during 12 months is rated 40. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Facts Reports of VA examinations show that in October 2004, forward flexion was to 20 degrees with intense pain, in February 2006, forward flexion was to 22 degrees with an additional 2 degrees limitation of motion due to pain during flare ups and repetitive motion, in August 2010, forward flexion was 15 degrees, in March 2011, forward flexion was to 28 degrees, and testing for repetitive range of motion could not be done, because of significant pain. On VA examination in March 2011, the VA examiner stated that the cervical spine condition had progressed in severity and that the major functional impact was pain as well as weakness, fatigue, lack of endurance, incoordination, and loss of function with use. The VA examiner stated that Veteran wore a neck brace because of painful motion and that the Veteran could not stay in one position long and he had to alternate among standing, sitting, or lying down. The VA examiner that although the Veteran had at least six weeks of incapacitating episodes, the incapacitating episodes did not require bedrest prescribed by a physician and treatment by a physician. Analysis During the appeal period flexion ranged from 15 degrees, which meets the criteria for a 30 percent rating, to 28 degrees, which meets the criteria for the current 20 percent rating. When as here there is a question as to which of two ratings apply, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In addition to limitation of flexion in the range of 15 degrees to 28 degrees, on VA examination in March 2011, the VA examiner stated that the major functional impact was pain as well as weakness, fatigue, lack of endurance, incoordination, and loss of function with use. The VA examiner stated that range of motion could not be further tested because of pain. Considering functional loss due to pain, weakness, fatigue, incoordination, lack of endurance, flare-ups, and painful movement under 38 C.F.R. §§ 4.40 and 4.45, the findings more nearly approximates flexion limited to 15 degrees, applying 38 C.F.R. § 4.7, which meets the criteria for a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. The criteria for next higher rating, 40 percent, unfavorable ankylosis of the entire cervical spine is not shown. As for associated objective neurological abnormalities under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran has separate ratings for radiculopathy of the right and left upper extremities. And the ratings for the neurologic abnormalities are not on appeal. A for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, although the Veteran had incapacitating episodes for at least six weeks, the VA examiner stated that the incapacitating episodes did not require bedrest prescribed by a physician and treatment by a physician. Therefore the criteria for the next higher rating, 40 percent, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. Also, the evidence does not show that the criteria for the next higher rating were met at any time during the appeal period for the assignment of a staged rating. 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 such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. ORDER A rating of 30 percent for cervical strain with traumatic joint disease and discectomy is granted. REMAND In a rating decision in July 2012, there is a notation "individual unemployability denied," but the only claims adjudicated were service connection for right and left upper extremity radiculopathy. And there was no subsequent notice to the Veteran that a total rating disability rating for compensation based on individual unemployability was adjudicated. As the Veteran is receiving disability benefits from the Social Security Administration, in part, due service-connected disability, as the current combined rating is 80 percent, before the increase granted here, which meets the minimum percentage requirements for a total disability raring under 38 C.F.R. § 4.16(a), the record reasonably raises the claim for a total disability rating for compensation based on individual unemployability, which is not a separate claim, but a part of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance with the duty to notify and the duty to assist, including a VA examination, if necessary, on the claim for a total disability rating for compensation based on individual unemployability. 2. After the development of the claim, adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs