Citation Nr: 1306221 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 06-05 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation higher than 30 percent for degenerative disc and degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Shana M. Dunn, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1967. This matter is before the Board of Veterans' Appeals (Board) from a February 2012 determination by the United States Court of Appeals for Veterans Claims (CAVC), which endorsed a February 2012 Joint Motion for Remand, wherein the parties moved to vacate and remand the portion of a June 2011 Board decision that denied entitlement to an initial rating in excess of 30 percent for degenerative disc disease and degenerative joint disease of the cervical spine. This appeal was initially before the Board on appeal from a May 2005 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA), Regional Office (RO) that awarded benefits under 38 U.S.C.A. § 1151 for degenerative disc and degenerative joint disease of the cervical spine, and granted service connection for myofascial strain of the cervical paraspinal and trapezius muscles on the right and left sides. By this decision the RO awarded a 20 percent rating for degenerative joint disease of the cervical spine, and assigned 10 and 20 percent disability evaluations, for disability involving the paraspinal and trapezius muscles on the right and left sides, respectively. The Veteran appealed these initial evaluations. See Fenderson v. West, 12 Vet. App. 119, 125-6 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity since the effective date of service connection). In June 2006, the RO increased the evaluation assigned for the disc and joint disease of the cervical spine from 20 percent to 30 percent, effective from the date of service connection, February 24, 2004. The claim for a still higher schedular rating remained on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless she or he expressly indicates otherwise). In addition to the May 2005 RO decision, the Veteran had also appealed a December 2007 rating decision that had denied service connection for a gastrointestinal disorder, to include as secondary to service-connected disabilities and/or compensated disabilities under 38 U.S.C.A. § 1151. The Veteran testified before the undersigned at a Travel Board hearing conducted in November 2009. A transcript of this hearing has been included in the claims folder. In February 2010, the Board had denied all issues before it. The Veteran appealed the decision to the CAVC. In February 2011, the CAVC granted a December 2010 Joint Motion for Remand (JMR), vacated the February 2010 decision, and remanded the matters back to the Board. In a June 2011 Decision and Remand (and pursuant to the December 2010 JMR) the Board remanded the claims of entitlement to service connection for a gastrointestinal disability and entitlement to an increased evaluation for myofascial strain of the cervical paraspinal and trapezius muscles on the right and left sides, respectively, for additional development. These claims are still in remand status and are not currently before the Board. Through this June 2011 Decision and Remand, the Board also denied entitlement to an initial evaluation greater than 30 percent for the service-connected degenerative disc and degenerative joint disease of the cervical spine. The Veteran appealed the denial of an increased rating for his cervical spine disorders to CAVC. On February 24, 2012, the CAVC granted the February 21, 2012 Joint Motion for Remand. As noted above, this issue is now again before the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In June 2011, the Board denied entitlement to an initial evaluation higher than 30 percent for the Veteran's service-connected degenerative disc and degenerative joint disease of the cervical spine on both a schedular and an extraschedular basis. The February 2012 Joint Motion for Remand did not disturb that part of the Board's decision that had denied an increased evaluation on a schedular basis; rather, the Joint Motion focused on the denial of the increased evaluation on an extraschedular basis. The Veteran had claimed that his cervical spine disorder resulted in a sleep disturbance due to neck pain, that he had headaches caused by the repetitive range of motion testing, and that the medications he took for his neck pain caused short-term memory loss. As a consequence, he argued that these additional difficulties justified the assignment of an increased rating on an extraschedular basis. In its June 2011 decision, the Board had found that the Veteran's neck condition did not present such an exceptional disability picture that would rendered the schedular rating criteria inadequate. As to his complaints that he had a sleep disturbance due to pain and headaches related to repetitive range of motion testing, the Board had stated that these complaints, while unfortunate, were not wholly unexpected secondary manifestations of the Veteran's type of cervical spine disorder. It was noted that it was simply unavoidable that he would have some secondary manifestations of neck pain that are not expressly listed as part of the rating criteria. These facts alone did not make the rating criteria inadequate. As to the reports of memory loss, the Board had found that it would seem unlikely that significant memory loss would result from simply taking medication to treat his neck pain. The parties to the February 2012 Joint Motion stated that there was no medical evidence of record to support the above-noted conclusions reached by the Board, and pointed out that because such medical evidence was not used in reaching these conclusions, the determinations were made in violation of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board "must consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion."). In the Joint Motion the parties also noted that the Veteran had not alleged that he had "significant memory loss," but that he had short-term memory issues because of the pain medication. It was agreed that the case should be remanded to the Board so that it could be considered whether the Veteran's neck condition presents such an exceptional disability picture as to render the rating criteria inadequate and to ensure that there is medical evidence that supports any conclusions made. Based on the above, the Board finds that another VA examination is needed before a final adjudication of this claim can be rendered. It is determined that, before any conclusions can be drawn as to whether the rating criteria are inadequate to fully compensate the Veteran for his degree of disability resulting from the cervical spine disorder, there must first be a medical opinion as to whether he has sleep disturbances, headaches, and short-term memory deficits related to either the underlying disorder or the medications he takes to control his pain. See 38 C.F.R. § 3.159(c)(4) (2012). The claims folder indicates that the last VA treatment records in the file date from March 2099. While on remand, the RO must ensure that all applicable VA treatment records have been obtained and associated with the claims folder. Once all appropriate development actions have been completed, the RO must review the evidence and determine whether the Veteran's claim for an extraschedular evaluation should be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration. See 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 211 (2008). Accordingly, the case is REMANDED for the following action: 1. Contact the Milwaukee, Wisconsin VAMC and request that they obtain and associate with the claims folder, the Veteran's treatment records developed from March 2009 to the present. All efforts to obtain these records must be documented for inclusion in the claims folder. All efforts must be continued until it is determined that the records are unavailable or that further efforts to obtain them would be futile. If the records are unavailable, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. Following completion of the development requested above, afford the Veteran a complete VA orthopedic examination to assess the nature and severity of his service-connected degenerative disc and degenerative joint disease of the cervical spine. The examiner must provide an opinion as to whether the Veteran experiences sleep disturbances related to his cervical spine disorder, whether he has headaches due to repetitive range of motion testing, and whether his pain medications have resulted in short-term memory problems. All indicated tests deemed necessary must be conducted. The claims folder is to be made available to the examiner to review in conjunction with the examination, and such review must be noted in the examination report. The examiner must provide a complete rationale for all opinions expressed. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App 382 (2010). 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claim folder, and must indicate that it was sent to his last known address of record. If he fails to report to the examination, the claim folder must indicate whether the notification letter was returned as undeliverable. 4. Once the above-requested development has been completed to the extent possible, the RO must determine whether the Veteran's case should be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an increased disability evaluation for the service-connected degenerative disc and joint disease of the cervical spine on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1) (2012). 5. If the benefit sought on appeal is not fully granted, the Veteran must be provided a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).