Citation Nr: 1308404 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-14 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 10 percent prior to July 18, 2012, and 20 percent thereafter, for cervical spondylosis (previously cervical disc disease). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1978 to June 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Procedural History and Clarification of Issue on Appeal The Veteran initially appealed an April 2004 rating decision which, in addition to denying an increased evaluation for his service-connected cervical spine disability, also denied service connection for separate disabilities of the lumbar spine and left shoulder radiculitis. In a June 2007 decision, the Board awarded service connection for intervertebral disc syndrome of the lumbar spine and left shoulder radiculitis; an August 2007 rating decision effectuated the Board's grant of service connection, and assigned initial evaluations to both disabilities. These decisions fully granted the Veteran's appeal with respect to these issues. The Veteran did not initiate a new appeal of the evaluations assigned to the lumbar spine and left shoulder disabilities; therefore, these issues are not currently before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The Veteran has submitted numerous statements and evidence specifically addressing the evaluations assigned to his service-connected lumbar spine and right upper extremity disability. As these increased evaluation claims are not before the Board, they are REFERRED to the RO for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). This case was previously before the Board in June 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include providing the Veteran with a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. Prior to July 18, 2012, the Veteran's cervical spine disability was manifested by no more than full forward flexion with extension limited by pain to 20 degrees and total range of motion of the cervical spine limited to 265 degrees; there is no objective evidence of ankylosis or incapacitating episodes, nor is there evidence of any associated neurological disabilities for which the Veteran has not been separately evaluated. 2. As of July 18, 2012, the Veteran's cervical spine disability was manifested by no more than forward flexion limited on repetitive motion to 25 degrees with extension limited to 15 degrees; there is no objective evidence of ankylosis or incapacitating episodes, nor is there evidence of any associated neurological disabilities for which the Veteran has not been separately evaluated. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent prior to July 18, 2012, and 20 percent thereafter, for cervical spondylosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 and 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through December 2003 and May 2006 letters sent to the appellant that fully addressed all notice elements. These letters informed the appellant of what evidence was required to substantiate his claim, and of the appellant's and VA's respective duties for obtaining evidence. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a number of VA and VA contract examinations in conjunction with his increased evaluation claim. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These examinations are adequate for the purposes of evaluating the Veteran's disability, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the Veteran's claim has been previously remanded for additional development, specifically to provide him a new VA examination. This examination was conducted in July 2012 and is adequate for rating purposes. The Board finds there has been substantial compliance with previous remand directives, and adjudication of the Veteran's claim may proceed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's cervical spine disability has been assigned an evaluation based upon limitation of motion of the cervical spine of 10 percent prior to July 18, 2012, and 20 percent thereafter, pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5242, pertaining to degenerative arthritis of the spine. The Veteran has also been diagnosed with degenerative disc disease of the cervical spine with radiculopathy of the left upper extremity. As such, the criteria pertaining to intervertebral disc syndrome also apply. Disabilities of the cervical and thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Formula provides the following ratings, in relevant part as they apply to the cervical spine: A 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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. Id. A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine, and a maximum 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which the entire cervical spine...or the entire spine is fixed in flexion or extension". See id., Note (5). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine". 68 Fed. Reg. at 51,455 (Supplementary Information). Notes appended to the new General Rating Formula for Diseases and Injuries of the Spine specify that associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). 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. Id., Note (2). Ranges of motion are to be rounded to the nearest five degrees. Id., Note (4). Separate disability ratings are to be given for the thoracolumbar and cervical spine segments. Id., Note (6). Intervertebral disc syndrome (either preoperatively or postoperatively), rated under Diagnostic Code 5243, is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The criteria contained in Diagnostic Code 5243 provides for a 20 percent evaluation where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). Prior to July 18, 2012 Prior to July 18, 2012, the Veteran's cervical spine disability has been assigned an evaluation of 10 percent under the General Rating Formula based upon limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his cervical spine disability at any point during this stage of the appeal. With regards to range of motion testing, a December 2003 VA contract examination found no evidence of muscle spasm or tenderness, with full range of motion of the cervical spine in all movements. Further, the examiner specifically found that range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination, and there were neither ankylosis of the spine nor signs of intervertebral disc syndrome present. A December 2010 VA examination found no abnormalities of the cervical spine, to include spasm, atrophy, guarding, tenderness or weakness. Motion of the cervical spine was found as following: full flexion to 45 degrees, extension limited to 20 degrees, lateral flexion limited to 30 degrees bilaterally, and lateral rotation limited to 70 degrees bilaterally. The combined range of motion of the cervical spine was 265 degrees. There was no objective evidence of pain or additional limitations after repetitive motion testing. See DeLuca, supra. The range of motion reflected by the VA examinations does not demonstrate functional limitation so severe as to warrant an evaluation greater than 10 percent prior to July 18, 2012. The Board has considered all evidence during this stage of the appeal, including the November 2003 statement from Dr. Perry indicating the Veteran's ranges of motion were "markedly restricted." However, despite Dr. Perry's description of the Veteran's symptomatology, no objective range of motion findings were included. Due to this vagueness, in light of objective testing which provides specific ranges of motion, the Board assigns less probative weight to Dr. Perry's November 2003 statement. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). The Board has also considered whether an increased evaluation is warranted prior to July 18, 2012, based on intervertebral disc syndrome. However, there is no evidence of incapacitating episodes, defined by regulation as doctor-prescribed bed rest, at any point during the appeal period. Therefore, an increased evaluation is not warranted under Diagnostic Code 5243. Under the above circumstances, the Board finds insufficient evidence to warrant an evaluation in excess of 10 percent at any point prior to July 18, 2012. There is no evidence of flexion of the cervical spine limited to 30 degrees or less, or a combined range of motion of the cervical spine limited to 170 degrees or less. Further, there is no competent evidence of muscle spasm or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Additionally, the medical evidence does not show that the Veteran has excess fatigue, weakness, incoordination or any other symptom or sign that results in such additional functional impairment. 38 C.F.R. §§ 4.40 and 4.45 (2012); DeLuca, 8 Vet. App. at 202 (1995). Finally, there is no evidence of incapacitating episodes during this stage of the Veteran's appeal. The Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent at any point prior to July 18, 2012, for the Veteran's cervical spine disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As of July 18, 2012 As of July 18, 2012, the Veteran's cervical spine disability has been assigned an evaluation of 20 percent under the General Rating Formula based upon limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his cervical spine disability at any point during this stage of the appeal. With regards to range of motion testing, a July 2012 VA examination found range of motion of the cervical spine, limited by pain, to 35 degrees of flexion and 20 degrees of extension. Further, the examiner found that, following repetitive testing, functional range of motion was additionally limited to 25 degrees of forward flexion and 15 degrees of extension. The post-repetitive testing findings will be considered as the Veteran's functional ranges of motion. See DeLuca, supra. There was neither ankylosis of the spine nor signs of intervertebral disc syndrome noted at the examination. The range of motion reflected by the July 2012 VA examination indicates an evaluation of 20 percent is warranted based on limitation of forward flexion to 30 degrees or less. However, as forward flexion was not limited to 15 degrees of motion or less, and ankylosis was not shown, an evaluation of 30 percent or higher is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. The Board has also considered whether an increased evaluation is warranted as of July 18, 2012, based on intervertebral disc syndrome. However, there is no evidence of incapacitating episodes, defined by regulation as doctor-prescribed bed rest, at any point during the appeal period. Therefore, an increased evaluation is not warranted under Diagnostic Code 5243. Under the above circumstances, the Board finds no evidence to warrant an evaluation in excess of 20 percent at any point as of July 18, 2012. There is no evidence of forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the cervical spine. Additionally, the medical evidence does not show that the Veteran has excess fatigue, weakness, incoordination or any other symptom or sign that results in such additional functional impairment. 38 C.F.R. §§ 4.40 and 4.45 (2012); DeLuca, 8 Vet. App. at 202 (1995). Finally, there is no evidence of incapacitating episodes during this stage of the Veteran's appeal. The Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent at any point as of July 18, 2012, for the Veteran's cervical spine disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neurological Manifestations The Board has considered whether a separate evaluation for neurological disability is warranted. Initially, the Board again notes that the Veteran has been awarded service connection for left shoulder radiculitis as related to his cervical spine disability. As this issue is not currently before the Board, the Board will not address the left upper extremity with respect to the present appeal. In addition, the preponderance of the evidence is against a finding that the Veteran suffers from radiculopathy of the right upper extremity. Despite the November 2003 findings of Dr. Perry of increased sensation to light touch corresponding nerve root levels of C1-C7 bilaterally, neither Dr. Perry, nor any other medical professional of record, has diagnosed radiculopathy of the right upper extremity. Thus, the Board finds that a separate evaluation for neurological disability is not warranted with respect to the present appeal. Final Considerations The Board acknowledges the Veteran's complaints of pain throughout the range of motion of his cervical spine. However, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion sufficient to serve as a basis for an increased evaluation at any point during the appeal period. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.") The Board also acknowledges the Veteran's contentions that his service-connected disabilities warrant evaluations greater than those assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria contained in 38 C.F.R. Part 4. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2) (2012). The discussion above reflects that the symptoms of the Veteran's service-connected cervical spine disability are contemplated by the applicable rating criteria. The effects of the Veteran's disability, namely painful and reduced motion, have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the record is negative for evidence that the Veteran is unemployable due to his cervical spine disability. He is not in receipt of Social Security disability benefits; nor is there any indication the Veteran is not working full-time as last reported on examination December 2010. The July 2012 VA examiner noted that the Veteran's cervical spine disability impacts the Veteran's employment in that he has difficulty tilting his head, but there is no indication that he has been rendered unemployable because of this impairment. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability adjudicated above. ORDER An increased evaluation for cervical spondylosis (previously cervical disc disease) is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs