Citation Nr: 1305656 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 06-39 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 20 percent for osteoarthritis of the cervical spine, as a residual of a compression fracture at C-3. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In October 2007, April 2010, and January 2011, the Veteran's appeal was remanded by the Board for additional development. In June 2007, the Veteran testified at the RO before a Veterans Law Judge who is no longer employed by the Board. He was subsequently offered and accepted another hearing, and in January 2011 testified at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the claims folder. In the October 2006 statement of the case, the RO increased the rating for the Veteran's service-connected cervical spine disability to 20 percent, effective July 14, 2005. However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran also perfected an appeal as to a claim for entitlement to service connection for a psychiatric disorder. As service connection for posttraumatic stress disorder was granted by the Appeals Management Center in October 2004, representing a complete grant of the benefits sought on appeal, that claim is no longer before the Board. FINDING OF FACT The Veteran's service-connected cervical spine disability is manifested by pain, stiffness, periodic muscle spasm, and some limitation of motion, but with forward flexion of the cervical spine greater than 15 degrees and no ankylosis of the cervical spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for osteoarthritis of the cervical spine, as a residual of a compression fracture at C-3, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2005 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was again provided this information in April 2008 letters, which also advised him of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in October 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, and hearing testimony. In addition, the Board notes that the case was remanded in October 2007 to provide the Veteran with a VA orthopedic examination; in April 2010 to provide the Veteran with a personal hearing; and in November 2011 to provide the Veteran with a VA orthopedic and neurologic examination and afford him the opportunity to authorize VA to obtain additional private treatment records. As noted above, the Veteran presented testimony during a hearing before the undersigned in January 2011. On remand, he was afforded VA examinations in September 2009 and February 2012. The February 2012 examination report includes both orthopedic and neurologic findings. In an October 2012 letter, the Veteran was asked to provide authorization for VA to obtain certain private records and was afforded an opportunity to submit additional evidence. Even though this letter was sent to his last known address and was not returned as undeliverable, the Veteran did not subsequently provide authorization for VA to obtain any private treatment records. Therefore, VA has no further duty to obtain these records. See 38 C.F.R. § 3.159(c)(1)(i) (2012). Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent VA examinations in August 2005, September 2009, and February 2012. These examinations are found to be adequate in so far as they thoroughly and accurately portray the extent of the cervical spine disability. They were each conducted after a review of the relevant history (with review of the claims file at the last two examinations). The Veteran was tested for range of motion and functional capacity, and diagnostic testing including X-rays were reviewed. Neurological testing was also performed during the February 2012 examination. Therefore the Board finds that the Veteran has been provided adequate medical examinations in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (finding an examination report to be lacking sufficient detail and as a result inadequate as it failed to address any range-of-motion loss specifically due to pain and any functional loss due to pain during flare-ups). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error 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). Analysis 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 (West 2002); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. With any form of arthritis, painful motion is an important factor. 38 C.F.R. § 4.59 (2012). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id., see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). 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. 38 C.F.R. § 4.40 (2012). The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. Id. When considering joints, manifestations of functional loss also include less or more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight bearing. 38 C.F.R. § 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that 38 C.F.R. § 4.45 applies to joint conditions as well as muscle and nerve conditions). Assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Historically, service connection was awarded for compression fracture of C3 by a September 1972 rating decision. A 0 percent disability rating was assigned, effective August 19, 1972. The current appeal stems from a July 2005 claim for an increased rating. The Veteran's cervical spine disability is currently evaluated as 20 percent disabling under Diagnostic Code 5237 which uses the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Under that Formula, a 20 percent rating is assigned with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, with the combined range of motion of the cervical spine not greater than 170 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned with forward flexion of the cervical spine 15 degrees or less or with favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned with unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). 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 is zero to 45 degrees, and left and right lateral rotation is zero to 80 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. See id., Note (2); see also id., at Plate V. In this case, the Veteran contends that his cervical spine disability is more disabling than currently evaluated. During his June 2007 hearing, he testified that he has pain with lifting, cannot lift a lot of weight, and has shooting pains to both arms. During his January 2011 hearing, he testified that he has periodic muscle spasms, shooting pain down the arm, and a limited range of motion to the left. The Veteran was afforded a VA neck and spine examination in August 2005. He complained of intermittent stiffness and fatigue. According to the Veteran, he was able to perform all activities of daily living and had no problems with ambulation. He denied flare-ups and incapacitating episodes. Examination of the cervical spine revealed no deformity or tenderness. Range of motion included flexion and extension to 30 degrees each, bilateral lateral flexion to 25 degrees, and bilateral rotation to 50 degrees. There was no further range of motion passively and no pain beyond those extreme values. On repetitive range of motion there was increased fatigue in the neck; however, there was no additional limitation like pain, weakness, or incoordination. X-rays were reviewed and were notable for a straightening of the lordotic curve suggestive of underlying muscle spasm, as well as degenerative disc narrowing at C5-C6 and C6-C7 with small anterior and posterior osteophytic production. The examiner diagnosed C3 compression fracture residual from accident while in the service, and C5-C6 and C7 degenerative disc narrowing. An August 2006 private treatment record noted the Veteran's complaint of long standing pain in the neck. Examination at that time revealed stiffness of the neck with pain on extension, flexion, and lateral bending more than 20 degrees. Rotation was limited to 45 degrees. X-rays revealed arthritis of C5-C6 and C6-C7 but no compression of C3. The impression was symptomatic osteoarthrosis of the lower cervical spine. The Veteran was afforded another VA spine examination in September 2009. He complained of constant neck pain which increases with turning his head to the left. The Veteran denied radicular symptoms down the upper extremities and fingers. He also denied experiencing incapacitating episodes. According to the Veteran, he has fairly constant flare ups, 4 to 5 times a day, when he turns his neck to the left quickly and has increased pain. The pain settles down if he remains sedentary in one position. The Veteran was working in a desk job and denied lost days from work, although he reported an inability to perform any household chores. On examination, the Veteran's neck was tender to palpation. Palpation of hypersensitive spots did not demonstrate any radicular symptoms. There was no gross muscular spasm or atrophy. Cervical spine flexion was to 45 degrees, extension was to 25 degrees with discomfort, left lateral flexion was to 10 degrees with pain at the endpoint, right lateral flexion was to 35 degrees with pain at the endpoint, left lateral rotation was to 30 degrees with pain at the endpoint, and right lateral rotation was to 65 degrees. After repetition, the range of motion was unchanged with increased pain on left lateral flexion and left lateral rotation. There was no fatigability, lack of endurance or gross incoordination. X-rays reportedly showed a normal lordotic curvature, mild osteoarthritic changes, no radiographic evidence of old or recent fracture, and bilateral neuroforaminal narrowing. The examiner diagnosed mild degenerative disc disease of the cervical spine; and myofascial pain syndrome of the left cervical paraspinals, left levator scapulae and left trapezii. An April 2011 private treatment record noted the Veteran's complaints of neck pain and stiffness. On examination there was pain in the neck with extremes of motion. Regarding range of motion, flexion and extension were almost normal, rotation was to 20 degrees bilaterally, and lateral bending was to 20 degrees bilaterally. Cervical spine X-rays reportedly showed no evidence of compression fracture but did show osteoarthritic changes at C5-6 and C6-7 consistent with degenerative disc disease. The impression was stiff neck due to degenerative disc disease. The Veteran was afforded a VA cervical spine examination in February 2012. He reported experiencing flare ups of pain with cervical spine motion. On examination, the cervical spine was tender to palpation. Cervical range of motion included 30 degrees of flexion, 5 degrees of extension, 30 degrees of right lateral flexion, 15 degrees of left lateral flexion, 20 degrees of right lateral rotation, and 15 degrees of left lateral rotation, with pain noted at the endpoints of motion. After repetition, there was pain on movement and right lateral flexion was further reduced to 20 degrees; however, the other ranges of motion stayed the same. There was guarding or muscle spasm but this did not result in an abnormal gait or spinal contour. Upper extremity muscle strength was 5/5 with no atrophy, reflexes were 2+, and sensory examination was normal. There was no radicular pain or any other signs or symptoms or radiculopathy. The examiner indicated that the Veteran did not have intervertebral disc syndrome. X-rays reportedly showed no arthritis or vertebral fracture. According to the examiner, the Veteran's cervical spine condition does not impact his ability to work. The examiner diagnosed degenerative disc disease of the cervical spine C3-4 through C6-7 levels. To receive a higher rating based on limitation of motion, the evidence would need to reflect forward flexion of the cervical spine to 15 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The medical evidence in this case reflects that forward flexion of the cervical spine was limited to 30 degrees at most, even when accounting for the effects of pain and limitation of motion and function after repetitive use. See DeLuca, supra. Such findings do not support a higher rating than the currently assigned 20 percent rating. Absent the requisite limitation of motion, the Veteran could only receive a higher rating under the General Rating Formula for Diseases and Injuries of the Spine with evidence of ankylosis of the cervical spine. See id. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The medical records clearly demonstrate that while motion of the Veteran's cervical spine is limited, see 38 C.F.R. § 4.71a, Plate V, some range of motion is present, as outlined above. Thus, it cannot be concluded that the Veteran has ankylosis of the cervical spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation, inasmuch as there is no clinical evaluation of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has also considered whether a higher or separate rating could be assigned based on the use of other diagnostic codes. A higher rating could be assigned based on incapacitating episodes if the Veteran has intervertebral disc syndrome, or a separate rating could be assigned for neurological manifestations. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). The evidence does not show and the Veteran does not report any incapacitating episodes. During examinations in August 2005 and September 2009 the Veteran denied having incapacitating episodes, and the physician who examined the Veteran in February 2012 indicated that the Veteran did not have intervertebral disc syndrome. Thus, a rating based on intervertebral disc syndrome with incapacitating episodes under Diagnostic Code 5243 is not appropriate in this case. See id. During the Veteran's hearings, he reported shooting pain to both arms. However, the evidence is against a finding that he has separately ratable neurological disability as a result of his cervical spine disability. During examination in September 2009, the Veteran denied radicular symptoms down the extremities and fingers. On examination, palpation of hypersensitive spots did not demonstrate any radicular symptoms. During examination in February 2012, the upper extremities had muscle strength of 5/5 with no atrophy and 2+ reflexes. Sensory examination was also normal. According to the examiner, there was no radicular pain or any other signs or symptoms or radiculopathy. Given the findings of no radiculopathy made by medical professionals after examination, and the Veteran's denial of radicular symptoms in 2009, the Board finds that overall the evidence does not reflect separately ratable neurological symptoms stemming from the service-connected cervical spine disability. The Board finds no other diagnostic code upon which a higher or separate rating could be awarded. The Board has further considered whether the Veteran's service-connected cervical spine disability represents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. The Veteran's primary symptoms - neck pain, stiffness, periodic muscle spasm, and limitation of motion - are all specifically noted in the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Referral for extra-schedular consideration is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A rating in excess of 20 percent for osteoarthritis of the cervical spine, as a residual of a compression fracture at C-3, is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs