Citation Nr: 1311199 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-08 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 20 percent for the service-connected cervical spine disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to August 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted an increased rating from 10 percent to 20 percent for the service-connected cervical spine disc disease, effective from February 14, 2007, the date on which the RO received the Veteran's claim for an increased rating. The Veteran disagreed with the level of increase, asserting that a rating in excess of 20 percent should be assigned for the service-connected cervical spine disability. The Veteran initially requested to appear for a personal hearing before a Veterans Law Judge, but he later withdrew that request. In an August 2011 remand, the Board pointed out that the Veteran reported left upper extremity radiculopathy symptomatology such as numbness, weakness and tingling in the left arm and fingers of the left hand. Up to that point, no medical professional had addressed whether the Veteran had neurological symptoms associated with the service-connected cervical spine disc disease. As such, the matter was remanded back to the RO for additional development, to include an assessment of the current nature and likely etiology of the Veteran's radicular symptoms. Based on findings from a VA examination conducted in April 2012, the RO issued a rating decision in May 2012 which granted a separate 30 percent rating for the neurological manifestations of the service-connected cervical spine disc disease pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8610. The RO also issued a Supplemental Statement of the Case in May 2012 which confirmed and continued the previously assigned 20 percent rating for the service-connected cervical spine disc disease on the basis of orthopedic manifestations. The Veteran was informed of his right to appeal the May 2012 rating decision which assigned a separate rating for neurological manifestations of the service-connected cervical spine disease. The record before the Board does not reflect that the Veteran has, to date, appealed either the rating or the effective date assigned. Accordingly, that matter is not before the Board at this time. FINDING OF FACT Forward flexion of the cervical spine is limited to 25 degrees, which is additionally limited to, at most, 20 degrees when considering additional functional impairment on repetitive use; neither ankylosis of the cervical spine nor incapacitating episodes of intervertebral disc syndrome (IDS) have been demonstrated. CONCLUSION OF LAW The criteria for the assignment of a disability evaluation in excess of 20 percent for the service-connected cervical spine disc disease have not been met for the entire time covered by this claim. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated March 2007. The notice letter complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate an increased rating claim and the relative duties of VA and the claimant to obtain evidence. Moreover, the March 2007 letter also provided to the Veteran with notice regarding the assignment of disability ratings and effective dates. The Veteran did not thereafter identify any outstanding private medical records pertinent to his claim. The Veteran's claim was developed, with a VA examination conducted in June 2007. The RO denied the claim in August 2007. The Veteran expressed his disagreement with the denial in September 2007. VA outpatient treatment records were obtained and associated with the claims file and the Veteran was re-examined in June 2008 In a July 2008 letter, the RO notified the Veteran of the specific rating criteria used to rate his service-connected cervical disease. The case was remanded in August 2011 for further evidentiary development. In particular, the Board instructed the agency of original jurisdiction (AOJ) to obtain pertinent VA treatment records dated since September 2008. Additionally, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the current nature and severity of his cervical spine disability, to include any associated neurological symptomatology. Finally, the AOJ was to readjudicate the Veteran's claim. The AOJ obtained up-to-date VA treatment records and the Veteran has not since identified any other outstanding treatment records that are relevant to his claim. Additionally, the Veteran appeared for a VA examination in April 2012. The examination report was responsive to the Board's remand instructions, and has been associated with the Veteran's VA claims folder. Based on the findings of the April 2012 VA examiner, the RO awarded a separate 30 percent disability rating for the left upper extremity radiculopathy in a May 2012 rating decision. As noted above, the record does not reflect that the determination was appealed. The AMC readjudicated the Veteran's claim for an increased rating for the service-connected cervical spine disc disease on the basis of orthopedic manifestations in a May 2012 SSOC. The April 2012 VA examination adequately addressed the remaining unanswered medical questions. The examination is adequate as the examiner reviewed the claims file, conducted a physical examination and provided sufficient information such that the Board can render an informed determination. In light of the above, the agency of original jurisdiction (AOJ) substantially complied with the August 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Moreover, in light of the notice sent to the appellant, as discussed above, the duty to notify has been met. In addition, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran physical examinations. The Veteran was afforded an opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Increased Rating 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006). The applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). The Veteran's original compensation claim was rated in 1991, prior to these changes. However, his current claim on appeal was filed in February 2007, subsequent to these changes. Accordingly, the Veteran's cervical spine disease will only be evaluated pursuant to the amended criteria. The orthopedic manifestations of the Veteran's cervical spine disability have been rated 20 percent disabling under Diagnostic Code 5243 [intervertebral disc syndrome] since the date of the Veteran's most recent claim for increase, February 14, 2007. Intervertebral disc syndrome may 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 evaluation when all disabilities are combined under § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). A compensable rating under Diagnostic Code 5243 requires the Veteran to have experienced incapacitating episodes, with bed rest as prescribed by a physician. See Note (1). In this case, the medical evidence does not reflect, nor does the Veteran contend, that he has ever been prescribed bed rest for his cervical spine disability. The June 2007 and June 2008 examination reports indicated that the Veteran did not have any incapacitating episodes of spine disease. Moreover, the April 2012 examiner noted that the Veteran's service-connected cervical spine disc disease did not affect the Veteran's full time job, which was a desk job and did not involve manual labor. In addition, the examiner reported that the Veteran had no incapacitating episodes in the last year although he occasionally took a day or a half day off work if the pain was severe. The Veteran has not otherwise reported nor does the other medical evidence of record show that the Veteran has incapacitating episodes of IVDS requiring physician-prescribed bed rest due to his neck problems. Thus, the Veteran's service-connected cervical spine disc disease will be rated using the General Rating Formula for Diseases and Injuries of the Spine, and not the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This provides the Veteran with the higher evaluation once the cervical spine rating is combined with the separate neurological rating of 30 percent. The General Rating Formula for Diseases and Injuries of the Spine designates the following: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or for a combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Note (2) of the General Rating Formula stipulates that 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. The normal combined range of motion of the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2) (2012). Rating the Veteran's cervical spine disability under Diagnostic Code 5003 [arthritis] has been considered, but doing so would not provide the Veteran with a disability rating in excess of the 20 percent currently assigned. Diagnostic Code 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. As noted above, all cervical spine disabilities, with the exception of intervertebral disc syndrome, are rated using the same criteria-the General Rating Formula for Diseases and Injuries of the Spine-which include consideration of any limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Crucially, the General Rating Formula does not include consideration of any neurological components of the Veteran's service-connected disability or disabilities. Rather, Note (1) of the General Rating Formula directs that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. In this regard, the RO awarded the Veteran a separate 30 percent disability ratings for radiculopathy of the left upper extremity, effective February 14, 2007, based on recent medical evidence demonstrating a link between this radiculopathy and the Veteran's service-connected cervical spine disorder. The evidence does not show that the Veteran has any other neurological abnormality associated with the service-connected cervical spine disorder. VA medical records dated in March 2007 and October 2007 reflect that there was no sensory loss, muscle strength was 5/5 in all extremities and reflexes were +2 in all extremities. In addition, neurological testing on VA examination in June 2008 did not reveal any abnormalities. VA examination in April 2012 only found a neurological abnormality with respect to the left upper extremity, which is separately rated. No neurological abnormality was found with respect to the right upper extremity or with respect to the bowel or bladder. While decreased strength of 3/5 was found on right elbow flexion and extension on VA examination in June 2007, the examiner did not diagnose a neurological abnormality nor did the examiners in 2008 or 2012. In addition, in March 2007 and October 2007, neurological findings were normal according to VA records. As a neurological abnormality with respect to the right upper extremity associated with the service-connected disability has not been diagnosed, a separate rating is not warranted. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. The diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the United States Court of Appeals for Veterans Claims (Court) held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. See DeLuca v. Brown, 8 Vet. App. 202 (1995). An April 2007 MRI of the cervical spine revealed mild degenerative changes more prominent at C6-7 where there was mild to moderate broad based disc osteophyte complex slightly asymmetric to the left and mild bilateral uncinate hypertrophy resulting in mild central canal stenosis and moderate bilateral foraminal narrowing. The Veteran's cervical spine range of motion was measured in June 2007, June 2008 and April 2012. In June 2007, there was objective evidence of spasm guarding tenderness weakness and pain on motion. There was no ankylosis. Active flexion of the cervical spine was from 0-25 degrees. Extension was from 0-5 degrees. Left and right lateral flexion was 0-20 degrees; and, left and right lateral rotation was from 0-45 degrees. There was objective evidence of pain following repetitive motion, but there was no evidence of additional limitations after three repetitions of range of motion. Lasegue's sign was positive. The Veteran was employed full-time and lost no time from work, although significant effects on his occupational activities were noted such as decreased mobility, problems with lifting and carrying, pain, and decreased strength in the upper extremity. The Veteran reported fatigue, decreased motion, stiffness, weakness and pain that was constant and moderate. He did not have flare-ups. In June 2008, the Veteran reported progressively worsening sharp and throbbing neck pain that radiated to his low back and left upper extremity, with numbness and tingling to all fingers of the left hand. He also reported flare-ups due to weather changes, overuse with yard work, and chores. There was objective evidence of spasm, with guarding, tenderness and weakness. Pain on motion was also noted. The Veteran reported significant additional limitation of motion or other functional impairments during flare-ups. There were no incapacitating episodes of spine disease, and no ankylosis of the cervical spine. Active cervical flexion was from 0-30 degrees; extension was from 0-15 degrees. Right and left lateral flexion was from 0-15 degrees; and, right and left lateral rotation was from 0-25 degrees. There was objective evidence of pain following repetitive motion. There was no additional limitation after repetitive use. The Veteran reported no time lost from work during the previous year. In April 2012, the Veteran reported increased pain and stiffness in his neck and left arm, with pain and numbness in his left hand. The Veteran reported flare-ups that impacted the function of his neck, which occurred during cold weather and on movements of his neck. He did not report that he had additional loss of motion on flare-ups. Active flexion of the cervical spine was from 0-25 degrees, with evidence of pain beginning at 15 degrees. Extension was from 0-15 degrees, with pain beginning at 10 degrees. Right lateral flexion was 0-25 degrees, with pain beginning at 15 degrees; left lateral flexion was from 0-20 with pain beginning at 10 degrees; right lateral rotation was from 0-35 degrees, with pain beginning at 20 degrees, and left lateral rotation was from 0-25 degrees with pain beginning at 10 degrees. There was objective evidence of pain following repetitive motion, and there was additional functional limitation after repetitive use testing as follows: Flexion was further limited to 20 degrees; extension was further limited to 10 degrees. The Veteran lost an additional 5 degrees of left and right lateral flexion after three repetitive motions; and, the Veteran lost 10 degrees of right lateral rotation and 5 degrees of left lateral rotation after repetitive use testing. The contributing factors to this additional functional loss include less movement than normal, weakened movement, pain on movement; and, numbness and tingling in the left hand. The Veteran had objective evidence of guarding or muscle spasm in the cervical spine. With regard to limited motion, at worst during the period of time covered by this claim, flexion of the cervical spine has been limited to 20 degrees, with consideration of additional functional impairment on repetitive use. This falls squarely within the range, from greater than 15 degrees to 30 degrees, for assignment of a 20 percent evaluation. A yet higher evaluation based on limited motion is not warranted unless motion is restricted to 15 degrees or less. Although pain with flexion was noted at 15 degrees at the April 2012 VA examination, there was no finding that such additional pain was functionally limiting. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In this case, there was pain at 15 degrees, but the Veteran could continue to flex to 25 degrees. However, there was additional functional limitation after repetitive use which reduced the range of flexion to 20 degrees. Because of actual functional limitation at 20 degrees, this is considered the point at which motion is limited for purposes of rating the disability. To warrant the assignment of a disability rating of 30 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the disability must manifest in favorable ankylosis of the entire cervical spine, or forward flexion of 15 degrees or less. For a 40 percent rating, unfavorable ankylosis of the entire cervical spine must be demonstrated. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The medical evidence of record does not demonstrate that the Veteran's cervical spine disability is at all ankylosed. Indeed, "ankylosis" is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. As the Veteran can clearly flex, extend and rotate his cervical spine [albeit in a limited capacity, as discussed in more detail below], neither unfavorable nor favorable ankylosis of the cervical spine is demonstrated, and entitlement to a 100 percent or 40 percent rating is not warranted under the General Rating Formula. Additionally, a 30 percent rating is not warranted because flexion of the cervical spine is not shown to be limited to 15 degrees or less, even with consideration of additional functional limitation due to pain on use. The Veteran's statements as to his symptoms have been considered and are credible, competent and probative. The Veteran reports that he experiences pain, fatigue, decreased motion, stiffness, weakness. While he reported on examination in 2008 that he had significant additional limitation of motion or other functional impairment during a flare-up, he did not state that he had additional limitation of motion and if so to what degree. On repetitive motion testing in 2012, the Veteran did show some additional loss of function due to less movement than normal, weakened movement and pain on movement. However, the additional functional loss, as discussed above, supports the currently assigned evaluation and does not meet the criteria for a higher rating. In sum, the Veteran's service-connected cervical spine disc disease, when rating pursuant to the General Rating Formula warrants a disability rating no higher than 20 percent, based on limitation of flexion to 20 degrees when considering additional functional limitation due to decreased range of motion as a result of weakness, fatigability, and pain. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria contemplate the Veteran's service-connected cervical spine disc disease, which is productive of pain, muscle spasms, stiffness, fatigability and weakness which ultimately result in limited motion. These symptoms are specifically contemplated by the rating criteria for cervical spine disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, 5243. The rating criteria are therefore adequate to evaluate the Veteran's service-connected cervical spine disc disease; and, referral for consideration of extraschedular rating is not warranted. For these reasons, the preponderance of the evidence is against the claim for an increased rating in excess of 20 percent for the service-connected cervical spine disc disease. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER An increased rating in excess of 20 percent for service-connected cervical spine disease is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs