Citation Nr: 1311916 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-38 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating for a cervical disability, cervical fusion of C5-C7, higher than 10 percent before May 5, 2011, and a rating higher than 20 percent from May 5, 2011. REPRESENTATION Veteran represented by: Nevada Office of Veterans' Services WITNESSES AT HEARINGS ON APPEAL Veteran and E.G. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1964 to June 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, the Veteran appeared at a hearing before a Decision Review Officer. In May 2010, the Veteran appeared at a hearing before a Veterans Law Judge. Transcripts of the hearings are in the Veteran's file. In February 2011, the Board remanded the appeal to the Appeals Management Center (AMC) for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the AMC granted service connection for the neurological manifestations of the cervical spine disability, namely peripheral neuropathy of the upper extremities. Additionally, the AMC granted service connection for the cervical spine surgical scar. The Veteran was informed of his appellate rights, and he did not disagree with either the assigned disability ratings or the effective dates. And the ratings are not on appeal. In February 2013, the Veteran was informed that the Veterans Law Judge who conducted the hearing in May 2010 had retired from the Board. The Veteran was afforded the opportunity for a new hearing, but he did not respond. In August 2012, the AMC noted the claims of service connection for a neurological disorder of the lower extremities and for a stomach disability have been raised by the evidence of record and the claims are referred to the RO for appropriate action. FINDINGS OF FACT 1. Before May 5, 2011, the cervical disability was manifested by an abnormal spinal curvature. 2. From May 5, 2011, the cervical disability was manifested by forward flexion to 80 degrees without cervical spine ankylosis. 3. The Veteran has not been prescribed bed rest to treat incapacitating episodes of the cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a cervical disability, cervical fusion of C5-C7, before May 5, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a rating higher than 20 percent rating for a cervical disability, cervical fusion of C5-C7, from May 5, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in July 2008. The Veteran was notified of the evidence needed to substantiate a claim for increase, namely, a worsening in severity and the effect on employment. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained private medical records. The Veteran was afforded VA examinations in 2008, 2010, and 2011. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria Before May 5, 2011, the cervical spine disability was rated 10 percent, and from May 5, 2011, the cervical spine disability has been rated 20 percent. A cervical spine disability is rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code depending on the particular nerve or nerve group that is affected. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Under the General Rating Formula, the criteria for a 10 percent rating are forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; the 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 that does not resulting in abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when muscle spasm or guarding is 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 when forward flexion of the cervical spine if 15 degrees or less, or when there is unfavorable ankylosis of the entire cervical spine. 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 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. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 10 rating are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. The criteria for a 20 rating are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The criteria for a 40 percent rating are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note (1). Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The segments of the cervical spine are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Facts On VA examination in August 2008, the Veteran complained of constant cervical pain, which precluded running, jumping, swimming, or lifting more than 30 pounds. On physical examination, there was no evidence of an excessive spinal curvature. On range of motion testing, cervical forward flexion was to 40 degrees, extension was to 20 degrees, bilateral lateral rotation was to 65 degrees, and bilateral lateral rotation to 45 degrees. The Veteran complained pain and discomfort toward the endpoints of the ranges of motion. However, no additional limitation of motion was elicited with repetitive range of motion testing. The VA examiner found no evidence of postural abnormalities or fixed deformities. X-rays showed degenerative changes and reversal of the lower cervical spine lordosis. A MRI study also showed reversal of the normal cervical lordosis with degenerative changes and multiple level disc bulging and protrusion. In August 2008, a private physician reported that a MRI showed mild spinal cord impingement and kyphosis. Private treatment records from October 2008 to January 2009 show that the Veteran underwent a series of steroid injections. During the treatment, range of motion of the cervical spine was within normal limits. In April 2009, the Veteran's spouse stated that the Veteran experienced constant pain, which is only temporary alleviated by steroid injections. On VA examination in April 2010, the Veteran stated that he experienced some improvement after a series of steroid injections and that he experienced pain and limited motion on rapid head movement. On physical examination, cervical forward flexion was to 35 degrees, extension was to 45 degrees, bilateral lateral rotation was to 50 degrees, and bilateral lateral flexion was to 30 degrees with no additional limitation of movement on repetitive motion. In September 2010, the Veteran had cervical spine surgery, which included a complete discectomy at C5-C6 and C6-C7, and a partial vertebrectomy at C5 and C6. The post-operative diagnosis was cervical spondylitic myeloradiculopathy. On VA examination in May 2011, the Veteran described moderate cervical pain and stiffness that increased with repetitive movement, and a one-day flare-up of cervical pian in March 2011, which he self-treated with bed rest. On range of motion testing, cervical forward flexion was to 80 degrees, extension was to 30 degrees, and bilateral lateral flexion and lateral rotation were to 30 degrees with no additional limitation of motion following repetitive movement. There was no evidence of cervical ankylosis or an excessive lordotic or kyphotic curve. A Rating Prior to May 5, 2011 As the Veteran was in receipt of a 100 percent rating for convalescence from his cervical spine surgery from September 29, 2010 until December 1, 2010, no higher rating is available for this period, and it is not considered in the analysis. 38 C.F.R. § 4.30. To receive a higher disability rating under the General Rating Formula for the Spine, the evidence must show forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Diagnostic studies revealed the presence of an abnormal spinal curvature during this rating period, referred to as reversed lordosis and kyphosis, as evidenced by interpretations of August 2008 cervical spine X-rays and an MRI study. Accordingly, a 20 percent rating is warranted. While the Veteran did complain of pain and the Veteran's spouse stated that she had observed the Veteran's pain, forward of flexion to 40 or 35 or 80 degrees does not more nearly approximate or equate to forward flexion of less than 15 degrees or to ankylosis. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the examination than the complaints of pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the absence of cervical spine forward flexion of 15 degrees or less, including as limited by pain or repetitive motion or favorable ankylosis spine, the criteria for the next higher rating, 30 percent, under the General Rating Formula have not been met. Additionally, there was no evidence of incapacitating episodes, namely, a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks, but less than 6 weeks during a 12 month period and the criteria for a rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes had not been met. As referenced above, the Veteran's service-connected cervical spine neurologic abnormalities are rated separately and the separate ratings are not on appeal. In summary, a rating of 20 percent for a cervical spine disability before May 5, 2011, is warranted. Rating After May 5, 2011 To receive a higher disability rating under the General Rating Formula for the Spine, the evidence must show cervical spine forward flexion of 15 degrees or less, or favorable ankylosis of the cervical spine. Forward flexion to 80 degrees with no evidence of cervical spine ankylosis does not more nearly approximate or equate to forward flexion less than 15 degrees or favorable ankylosis. Given the absence of cervical spine forward flexion of 15 degrees or less, including as limited by pain or repetitive motion or favorable ankylosis spine, the criteria for the next higher rating, 30 percent, under the General Rating Formula have not been met. Additionally, there was no evidence of incapacitating episodes, namely, a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks, but less than 6 weeks during a 12 month period and the criteria for a rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes had not been met. As referenced above, the Veteran's service-connected cervical spine neurologic abnormalities are rated separately and the separate ratings are not on appeal. In summary, a rating of 20 percent for a cervical spine disability from May 5, 2011, is not warranted. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the disability levels and symptomatology, inasmuch as the Veteran's cervical spine disability is manifested by pain and limitation of motion. Moreover, the rating criteria provide for higher disability ratings for increased symptoms. In other words, the Veteran does not experience any symptomatology not already encompassed in the rating criteria, and the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability As the Veteran maintained full time employment throughout the period of appeal, a total disability rating for compensation based on individual unemployability is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER A 20 percent rating for a cervical disability, cervical fusion of C5-C7, before May 5, 2011, is granted. A rating higher than 20 percent rating for a cervical disability, cervical fusion of C5-C7, from May 5, 2011, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs