Citation Nr: 1308359 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-02 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for cervical disc herniation with radiculopathy. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to July 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for cervical disc herniation with radiculopathy, evaluated as 30 percent disabling and effective February 26, 2001. The Veteran appealed both the effective date and the disability evaluation. In October 2009, the Board remanded this case for issuance of a Statement of the Case (SOC). This SOC was issued in December 2009 and, thereafter, the Veteran perfected his appeal by submitting a VA Form 9. In September 2011, the Board denied the Veteran's claim for an earlier effective date for the grant of service connection for cervical disc herniation with radiculopathy and remanded the disability evaluation issue for further development. In an October 2012 rating decision, the Appeals Management Center (AMC) granted service connection for cervical radiculopathy of the left upper extremity, evaluated as 20 percent disabling, effective September 23, 2002. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file includes additional VA treatment records that were considered in conjunction with this decision. FINDINGS OF FACT 1. The Veteran's cervical spine disability is characterized by pain and limitation of motion, but not ankylosis. It does not result in incapacitating episodes totaling 4 or more weeks per year. 2. The associated left upper extremity radiculopathy is characterized by pain, numbness, decreased sensation, and some decreased strength; no more than mild radiculopathy of the left upper extremity is demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for cervical disc herniation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8614 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's September 2011 remand, VA obtained additional VA treatment records from the VAMC Miami and sent the Veteran a September 2011 letter requesting that he identify any additional VA treatment records and that he complete and return an Authorization and Consent to Release Information form for any additional private treatment records. In an October 2011 statement, the Veteran indicated that there were no additional outstanding treatment records to consider. VA also provided the Veteran with a medical examination in October 2011. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the September 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The July 2007 rating decision at issue granted service connection for a cervical disc herniation with radiculopathy and assigned a 30 percent evaluation, effective February 26, 2001. The Veteran appealed that evaluation. See Fenderson v. West, 12 Vet. App 119 (1999). During the pendency of this appeal, the AMC granted service connection for cervical radiculopathy of the left upper extremity, evaluated as 20 percent disabling, effective September 23, 2002. See October 2012 rating decision. In increased initial rating claims, the Veteran's entire history is reviewed. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases where a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson, 12 Vet. App. 119; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Prior to September 26, 2003, limitation of motion of the cervical spine was evaluated under Diagnostic Code 5290. 38 C.F.R. § 4.71a (2003). Slight limitation of motion of the cervical spine was to be rated 10 percent disabling; moderate limitation of motion of the cervical spine was to be rated 20 percent disabling; and severe limitation of motion of the cervical spine was to be rated 30 percent disabling. Id. Thus, the Veteran's current 30 percent is the maximum available under Diagnostic Code 5290. Currently, Diagnostic Code 5243 (effective September 26, 2003) provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Note (6) (2012). The General Rating Formula for Diseases and Injuries of the Spine provides a 30 percent disability rating for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Id. Normal ranges of motion of the cervical spine are flexion from 0 degrees to 45 degrees, extension from 0 degrees to 45 degrees, lateral flexion 0 degrees to 45 degrees bilaterally, and lateral rotation from 0 degrees to 80 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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. 38 C.F.R. § 4.71, Note (5). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, 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) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated 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. Additionally, evaluation of associated objective neurologic abnormalities is part of a claim for evaluation of a spinal disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). As such, the Board will also address any associated neurological symptoms. The Veteran has complained of severe pain with radiation down his left arm to his finger tips. The range of motion of the Veteran's cervical spine is severely limited. The Veteran noted in his October 2012 statement that he requires injections in his neck in order to maintain any range of motion. To the extent that his range of motion has been measured, the September 2002 VA examination found right rotation to 15 degrees, left rotation 20 degrees, flexion to 10 degrees, and extension to 10 degrees, all with pain. At the October 2011 VA examination, flexion was to 30 degrees, extension to 45 degrees, right lateral flexion to 20 degrees, let lateral flexion to 20 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees with pain at the end of all ranges. While the examiner checked the box indicating that the Veteran was unable to perform repetitive range of motion testing, she did not provide a reason for such and instead supplied range of motion measurements for repetitive testing. The Board, therefore, finds that the totality of the examination report shows that the Veteran was able to perform repetitive range of motion testing and that such testing resulted in no additional loss of motion. The examination does show that repetitive motion resulted in increased pain. The September 2002 VA examination also noted paravertebral spasm and pain in left arm. The Veteran had full extension of his fingers, but lacked 15 degrees of flexion in third, fourth, and fifth fingers. Muscle strength testing at the October 2011 VA examination was generally normal except that left side finger flexion and abduction were decreased to 4/5. Sensory testing found decreased sensation in the left upper extremity. The Veteran's left upper extremity showed signs of radiculopathy including constant moderate pain, mild paresthesias and/or dysesthesias, and mild numbness. The overall severity of this left upper extremity radiculopathy was described as mild. No symptoms of radiculopathy of the right upper extremity were found. The accompanying peripheral nerves examination found severe pain and paresthesias of the left upper extremity and moderate numbness. The Veteran generally had full muscle strength except for left sided grip and pinch, which were measured as 4/5. The Veteran's left upper extremity was also found to have decreased sensation. Ultimately, the Veteran was found to have mild incomplete paralysis of the left hand, fingers, and elbow/forearm. At the time of the October 2011 VA examination, the Veteran reported flare-ups once a month that left him bedridden for two days. He was found to have Intervertebral Disc Syndrome of the cervical spine, but no associated incapacitating episodes. Even if the two days of being bedridden were prescribed by a physician, which is not the case, this would total 24 days per year or less than 4 weeks and would not warrant an evaluation greater than the 30 percent currently assigned for cervical spine disability. Therefore, a higher evaluation under Diagnostic Code 5243 for intervertebral disc syndrome is not warranted. Based on the above, the Veteran's cervical disc herniation most nearly approximates the criteria for the current 30 percent disability evaluation. Throughout the course of the appeal, the Veteran's range of motion of the cervical spine has been limited to no less than 10 degrees of forward flexion. The Veteran reported severe pain. However, he is currently in receipt of the maximum schedular rating for limitation of motion of the cervical spine and the pain and resulting limitation of function does not warrant a higher evaluation. There is no evidence of ankylosis, much less unfavorable ankylosis (with 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) as required for the next higher evaluation of 40 percent. The Veteran's subjective complaint of additional radiation of pain across his head, as contained in his August 2007 Notice of Disagreement and January 2010 VA Form 9, has not been medically associated with his cervical spine disability. Indeed, VA treatment records note similar pain as part of the Veteran's history of migraine headaches. See e.g., February 2010 VA Outpatient Treatment Record. Currently, the only objective neurologic abnormality associated with this disability is the cervical radiculopathy of the left upper extremity. As noted above, the Veteran has been assigned a separate 20 percent evaluation for cervical radiculopathy of the left upper extremity under Diagnostic Code 8614, effective September 23, 2002 (the date the current regulations took effect). See 38 C.F.R. § 4.124a. The record indicates that the Veteran is right handed, therefore, the left upper extremity is his minor extremity. Under 8614, pertaining to paralysis of the musculospiral nerve, if the minor extremity has mild or moderate incomplete paralysis, it warrants a 20 percent disability rating, severe incomplete paralysis warrants a 40 percent disability rating, and a 60 percent disability rating is warranted for complete paralysis, where the there is drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. See 38 C.F.R. § 4.121a, Diagnostic Code 8614. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the above, the Veteran's cervical radiculopathy of the left upper extremity is characterized by no more than mild symptoms in keeping with the current 20 percent evaluation. The Veteran's has reported pain and numbness in his left upper extremity. Some limitation of motion of the fingers is noted. Neurological testing has also shown decreased sensation and muscle strength. While not dispositive, the Board notes that the October 2011 VA examiner described these symptoms as equivalent to mild incomplete paralysis. These findings, however, do not nearly approximate severe incomplete paralysis as required for the next higher evaluation. 38 C.F.R. § 4.7. Thus, the Board determines that the evidence does not support evaluations greater than the current 30 percent for the cervical spine disability or 20 percent for the cervical radiculopathy of the left upper extremity. 38 C.F.R. § 4.7. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as ankylosis, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. The Board has also considered whether a Total Rating for Compensation Based on Individual Unemployability (TDIU) is warranted. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), TDIU is considered an element of initial ratings when raised by the record. However, the Veteran is currently in receipt of a total schedular rating since July 17, 1995 (several years prior to the grant of service connection for cervical spine disability). Thus, Rice is inapplicable in this case. ORDER An initial evaluation in excess of 30 percent for cervical disc herniation is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs