Citation Nr: 1315824	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  05-41 118	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1.  Entitlement to an initial rating higher than 10 percent for cervical spondylosis from October 6, 2003 to August 10, 2010.

2.  Entitlement to a rating higher than 20 percent for the cervical spondylosis since August 11, 2010.

3.  Entitlement to an initial rating higher than 30 percent for migraine headaches with dizziness.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel


INTRODUCTION

The Veteran had active military service from August 1978 to August 2002.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from September 2004 and November 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In the September 2004 rating action, the RO granted service connection for cervical spondylosis and assigned an initial 10 percent disability rating retroactively effective from October 28, 2003.  [The effective date subsequently was changed to October 6, 2003, so slightly earlier.]  The Veteran appealed for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this change in rating, over time, while compensate the Veteran for this variance in the severity of the disability).

In the November 2005 rating action since issued, the RO granted service connection for migraine headaches with dizziness and assigned a 30 percent disability rating retroactively effective from October 28, 2003.  [The effective date since has been changed to October 6, 2003.]  The Veteran also appealed for a higher initial rating for this additional disability.  Id.

In June 2009, the Veteran testified at a hearing at the Board's offices in Washington, DC, before a Veterans Law Judge (VLJ) - which is often and more commonly referred to as a Central Office (CO) hearing.

The Board subsequently, in August 2009, remanded the claims for further development.

In another rating decision since issued in September 2010 the RO increased the rating for the Veteran's cervical spondylosis (neck disability) from 10 to 20 percent as of August 11, 2010, the date of a VA examination on remand showing the level of disability required for this higher rating.  So that represented a "staging" of the rating for this disability.  See Fenderson, 12 Vet. App. at 125-26.  The Veteran continued to appeal, requesting an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is requesting the highest possible rating for a service-connected disability, absent express indication to the contrary).  So this claim now concerns whether she was entitled to an initial rating higher than 10 percent from October 6, 2003 to August 10, 2010, and whether she has been entitled to a rating higher than 20 percent since August 11, 2010.

In November 2010 and March 2012, the Board again remanded these claims for still further development.

In a February 2013 letter, the Board notified the Veteran that the VLJ who had presided over her June 2009 CO hearing was no longer employed by the Board, since having retired.  The Board indicated that, by law, the Veteran must be given the opportunity for another hearing before a different VLJ that would ultimately decide this appeal.  In her response later in February 2013, she indicated that she did not want another hearing, preferring instead to have her appeal considered on the existing record.

Meanwhile, in December 2012, her representative, the Veterans of Foreign Wars of the United States (VFW), submitted outpatient treatment records from the VA Medical Center (VAMC) in Washington, DC, dated from March 2012 to February 2013, in support of the claim for a higher initial rating for the migraines.  The VFW waived the right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ).  38 C.F.R. § 20.1304(c).  Nevertheless, in view of the action taken below, initial consideration of this evidence should be undertaken by the RO.
 
The Board is remanding this issue of entitlement to an initial rating higher than 30 percent for the migraine headaches with dizziness to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding whether higher ratings are warranted for the cervical spondylosis, both before and since August 11, 2010.


FINDINGS OF FACT

1.  For the initial period at issue from October 6, 2003 to August 10, 2010, the Veteran's service-connected cervical spondylosis was manifested by pain and consequent limitation of motion; however, forward flexion of the cervical spine was not limited to 30 degrees or less, and the combined range of motion of the cervical spine was not to 170 degrees or less; as well, there was no evidence of incapacitating episodes because of this disability; and the Veteran did not have ankylosis of this segment of her spine.

2.  Since August 11, 2010, this service-connected cervical spondylosis has continued to be manifested by pain and consequent limitation of motion; however, forward flexion of the cervical spine, though greater restricted, has not been limited to 15 degrees or less; there also continues to be no evidence of incapacitating episodes because of this disability or ankylosis of this segment of the spine.


CONCLUSIONS OF LAW

1.  The criteria are not met for an initial rating higher than 10 percent for the cervical spondylosis from October 6, 2003 to August 10, 2010.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012).

2.  The criteria also are not met for a rating higher than 20 percent for the cervical spondylosis since August 11, 2010.  Id.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  The VCAA also redefined the obligations of VA with respect to the duty to assist the Veteran with the claim.  Id.  In this instance, the Board finds that VA fulfilled these statutory and regulatory obligations.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete the claim.  38 U.S.C.A. §§ 5102, 5103.  The Board concludes that the letters dated in October 2003, December 2004, March 2006, August 2006, and March 2008 that were sent to the Veteran adequately apprised her of the information and evidence needed to substantiate the claim.  The RO thus complied with VCAA's notification requirements.

In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant of the information and evidence necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence the claimant is expected to provide.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).


Additionally, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), holding that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim.  Those 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. 

The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision.  There is no issue as to providing an appropriate application form or completeness of the application.  Written notice provided in October 2003, December 2004, March 2006, August 2006, and March 2008 fulfills the provisions of 38 U.S.C.A. § 5103(a).  That is, the Veteran received notice of the evidence needed to substantiate her claim, the avenues by which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence.  See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In addition, the March and August 2006 letters also informed her of how VA determines disability ratings and effective dates, as required by Dingess. 

The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), VCAA notice should ideally "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim."  Written notice was provided in October 2003, prior to the appealed from rating decisions, along with the subsequent notice provided in December 2004, March 2006, August 2006, and March 2008, after the decision that is the subject of this appeal.  With respect to any timing deficiency in the sense that not all of those notices preceded the initial adjudication of the claim, the Board points out that the claim was readjudicated in September 2008, December 2008, September 2010, December 2011, and November 2012 supplemental statements of the case (SSOCs), after providing all required notice.  So those readjucations served to rectify ("cure") the timing defect in the provision of those notices.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

During the pendency of this appeal, the Court issued a decision in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), holding that VA needed to provide a greater degree of specificity with respect to notice of the criteria necessary for an increased rating.  However, this decision later was vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), indicating VA need only provide generic notice and need not apprise the Veteran of alternative diagnostic codes or to present evidence as to how his disabilities affect his daily-life experiences.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  Also, since this claim for a higher initial rating for the cervical spondylosis is a "downstream" issue arising out of the granting of service connection for this disability, Vazquez notice was never required.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  In this circumstance, the claim as it arose in its initial context, for service connection, has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  So once a Notice of Disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and statement of the case (SOC) control as to the further communications with the appellant, including as concerning what evidence is necessary to establish a more favorable decision with respect to this downstream elements of the claim.  Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  And the Veteran was provided this required SOC, also supplemental SOCs (SSOCs), discussing this downstream claim for a higher initial rating for her cervical spondylosis, citing the applicable statutes and regulations, and providing reasons and bases for assigning an initial 10 percent rating, then a higher 20 percent rating, but no greater rating.  She therefore has received all required notice concerning her claim.


Moreover, she has not alleged any undue prejudice in the notice provided, either in terms of the timing or content of it.  And as the pleading party attacking the agency's decision, she has this burden of proof of not only establishing the occurrence of such error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of her claim.  She has not made any such pleading or allegation.  See Shinseki v. Sanders, 129, S. Ct. 1696 (2009).

She has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Duty to Assist

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence.  The evidence of record includes her service treatment records (STRs) and post-service VA treatment records.  There is no suggestion that any additional evidence relevant to this claim still needs to be obtained.

The Board also finds compliance with its August 2009, November 2010, and March 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance).  In the August 2009 remand, the Board directed the RO/AMC to obtain the Veteran's outpatient treatment records from the VAMC in Alexandria, Virginia, since 2008.  

The RO/AMC also was requested to obtain any records from the Walter Reed Medical Center in Washington, DC, and the Malcolm Grow Hospital at Andrews Air Force Base in Maryland.  In addition, the RO/AMC was to have a VA compensation examination scheduled for a medical opinion reassessing the severity of this service-connected cervical spine disability.

In November 2009, the RO/AMC received treatment records from the Malcolm Grow Hospital, dated from February 2008 to October 2009.  In addition, in a November 2009 Memorandum, the RO/AMC determined that medical records from the Walter Reed Medical Center were unavailable.  In October 2009, the Walter Reed Medical Center had informed the RO/AMC that it was unable to locate any of the requested records concerning this Veteran.  38 C.F.R. § 3.159(c)(2) and (e)(1).

On August 11, 2010, the Veteran had the requested VA compensation examination, which provided the information needed to reassess the severity of her disability.  Indeed, the findings of that examination were the basis for increasing the rating for her disability from 10 to 20 percent as of the date of that examination.  The Board has the level of information needed to properly rate this disability, both in terms of the specific rating criteria and the effect of this disability on her functioning.

In November 2010 and March 2012, the Board once again remanded this claim.  In the November 2010 remand, the Board noted that, according to the Veteran, she had received treatment from a neurologist at the VAMC in Washington, DC.  Thus, the RO/AMC was directed to obtain any outstanding treatment records from the Washington, DC, VAMC and to associate them with the claims file for consideration.  In the subsequent March 2012 remand, the Board noted that, according to a January 2012 statement from the Veteran, she had undergone a magnetic resonance imaging (MRI) evaluation at the VAMC in Washington, DC, in 2011, the report of which had not been obtained.  As well, the Board observed that the claims file did not contain any outpatient treatment records from 2011.  Therefore, the RO/AMC was instructed to obtain all outstanding VA treatment records and to associate them with the claims file for consideration.

The Veteran's electronic ("Virtual VA") file includes outpatient treatment records from the Alexandria, Virginia, and Washington, DC, VAMCs, dated from June 2008 to March 2012.  In addition, Washington, DC, VAMC outpatient treatment records dated from March 2012 to February 2013 have been associated with the claims file.  The Washington, DC, VAMC records show that in September 2011 the Veteran had an MRI taken of her lumbosacral spine.  Thus, the MRI concerned her lower back and not her upper back or cervical spine.

In light of the additional development of this claim that has occurred following and as a result of those several remands, the Board finds that the RO/AMC has complied with the Board's August 2009, November 2010, and March 2012 remand directives, certainly substantially complied.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives).  The RO/AMC obtained the requested VAMC treatment records and also provided the Veteran a VA examination as directed, and the VA examination report contains the information needed to assess the severity of her disability, especially when considered along with the other evidence in the file.  Stegall, supra; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Therefore, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion.  38 C.F.R. §§ 3.326, 3.327.

The Veteran also had a CO hearing before a VLJ of the Board in June 2009, during which the Veteran presented oral argument in support of her claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked that may be advantageous to the appellant's position.  In this case, the VLJ set forth the issue to be discussed during the hearing and sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might substantiate the claim.  

The VLJ notified the Veteran that, in order to prove her claim, she had to show that the ratings assigned to her service-connected cervical spine disability were not high enough in light of the amount of functional impairment that her disability causes.  So she was requested to explain her symptoms, their severity, and consequent impairment, including in her day-to-day activities.  Moreover, neither she nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conducting of that Board hearing.  The hearing focused on the elements necessary to substantiate the claim and the Veteran, through her testimony, demonstrated her actual knowledge of these requirements.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating this claim based on the current record.

II.  Factual Background

The Veteran's STRs show she had complaints of neck and upper back pain beginning in April 2001.  She retired from the military in August 2002.

In October 2003, so the very next year, she filed a claim for service connection for a cervical spine disability - alleging it had originated during her military service.

In August 2004, in developing her claim, she underwent a VA examination that was done under contract by QTC Services.  She stated that she had experienced neck pain since 2001.  The pain was intermittent and could last from several days to two weeks.  The pain was "aching and cramping" in nature and radiated to the right arm.  The severity on a scale from 1 to 10 was a 6 or 7.  According to her, she took Motrin for pain relief.  Due to the neck pain, her neck mobility decreased and she could not rotate her neck too far.  Upon physical examination, her neck was normal.  

With respect to range of motion of the neck, flexion was to 40 degrees, with pain starting at 35 degrees; extension was to 45 degrees; right lateral flexion was to 45 degrees; left lateral flexion was to 45 degrees; right rotation was to 80 degrees; and left rotation was to 80 degrees.  The range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination.  There was no ankylosis.   The peripheral nerve examination was normal.  X-rays of the cervical spine were reported to show minimal anterior spurring at C5.  The disk space at C5-6 was slightly narrowed.  The assessment was spondylosis and possible disc disease at C5-6.  Following the physical examination and a review of the 
X-rays, the examiner diagnosed the Veteran with cervical spondylosis and possible disk disease as seen on X-ray.  There was pain and some decreased range of motion.

In a September 2004 rating decision, the RO granted service connection for cervical spondylosis.  The RO assigned an initial 10 percent disability rating under Diagnostic Code 5237, retroactively effective from October 28, 2003.  [The effective date subsequently was changed to October 6, 2003, to coincide with the receipt or filing of this claim.]  In that same rating action, the RO granted service connection for carpal tunnel syndrome (CTS) of the right and left hands and wrist.  Separate 10 percent ratings were assigned for each hand, retroactively effective from October 28, 2003.  [The effective date subsequently was changed to October 6, 2003.]

In a June 2008 letter from the Veteran, she stated that due to pain in her back, legs, shoulders, and neck, she had to limit her activities and take "sick leave" from work.  According to her, in the year 2007, she had used 112 hours of sick leave.  Also, in the first five months of 2008, she already had used 48 hours of sick leave.

In August 2008, she had another VA examination on contract by QTC Services.  She indicated that she continued to experience pain down her neck and left shoulder.  She denied any visual disturbances, weakness, numbness, fevers, or malaise.  Upon physical examination, there was evidence of radiating pain on movement to the left arm with no evidence of muscle spasm.  There was tenderness of the left cervical paraspinal muscles.  There was no ankylosis of the cervical spine.  In regard to range of motion of the cervical spine, flexion was to 40 degrees, with pain starting at 35 degrees; extension was to 45 degrees; right lateral flexion was to 25 degrees; left lateral flexion was to 45 degrees; right rotation was to 70 degrees; and left rotation was to 80 degrees.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, or lack of endurance or incoordination after repetitive use.  X-rays of the Veteran's cervical spine were reported to show degenerative disc disease (DDD) of this segment with intervertebral disc syndrome (IVDS).  Following the physical examination and a review of the X-rays, the examiner indicated the Veteran's cervical spondylosis had progressed to cervical spondylosis with IVDS affecting the left radial nerve.  She had pain radiating from her neck down her arm to her left thumb with stiffness.  There was tenderness and decreased range of motion with pain and sensory deficits of her left upper arm and left thumb.  Due to her service-connected back disability, she could not sit and type or do computer work for more than 45 minutes at a time, less when her service-connected CTS was flaring.

In a September 2008 rating action, the RO recharacterized the Veteran's 
service-connected CTS of the left hand as left upper extremity radiculopathy with CTS and pronator syndrome.  The RO also increased the disability rating from 10 to 20 percent retroactively effective as of the same date - October 6, 2003.  In that same rating action, the RO also recharacterized her service-connected CTS of the right hand as right CTS and pronator syndrome and increased the disability rating from 10 to 20 percent retroactively effective as of October 6, 2003.

In June 2009, the Veteran testified at a hearing at the Board's offices in Washington, DC ((CO) hearing).  She stated that she had pain in her neck and limited range of motion.

On August 11, 2010, she underwent yet another VA compensation examination.  She stated that she had chronic pain in her neck with restricted movement.  
Flare-ups occurred on a "nearly weekly basis."  She treated the pain with Ibuprofen, physical therapy, stretching exercises, and heat.  The examiner stated that an MRI of the cervical spine taken in early 2010 showed degenerative joint disease at C6-7.  

The Veteran then currently worked full-time in a secretarial position.  She had worked as a secretary for 5 to 10 years.  In the last year, she had lost 2 weeks of work due to neck pain, low back pain, and headaches.

On objective physical examination, there was no cervical spine ankylosis.  Examination of the cervical sacrospinalis showed no spasm, atrophy, guarding, pain, tenderness, or weakness.  With respect to range of motion of the cervical spine, flexion was to 30 degrees; extension was to 45 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 60 degrees; and left lateral rotation was to 60 degrees.  There was pain with active range of motion and upon repetitive motion.  There were no additional limitations after three repetitions of range of motion.  There was decreased radial aspect of the palms, including thumb and index fingers, bilaterally.  The diagnosis was degenerative joint disease (DJD, i.e., arthritis) at C6-7, cervical spondylosis.  The effects of the Veteran's neck disability on her employment were increased absenteeism, problems with lifting and carrying, and pain.  The effects of the neck disability on her daily activities were decreased ability to exercise and perform chores, and she could not play sports.  She was able to perform the usual activities of daily living - including grooming, bathing, dressing, etc.

In another rating decision since issued in September 2010, the RO/AMC increased the rating for the Veteran's service-connected cervical spine disability from 10 percent to 20 percent under Diagnostic Code 5237, retroactively effective from August 11, 2010, the date of that VA examination showing increased symptoms.


III.  Analysis

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2012), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).

Where there is a question as to which of two evaluations is to 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 (2012).  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2012).

As already alluded to, as the Veteran took issue with the initial rating assigned for her cervical spine disability following the granting of service connection for this disability, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating.  See Fenderson, 12 Vet. App. at 125-26.  Thus, the Board must evaluate the relevant evidence since the receipt of her claim for service connection for this disability on October 6, 2003.

Under the current rating criteria for disabilities of the spine, the General Rating Formula provides for the following disability ratings for diseases or injuries of the spine, 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.  It applies to Diagnostic Codes 5235 to 5243, unless the disability rated under Diagnostic Code 5243 is evaluated instead under the Formula for Rating IVDS based on Incapacitating Episodes.


Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a Veteran is awarded a 10 percent disability rating when he/she has 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 spinal contour.  The next higher rating of 20 percent is awarded when forward flexion of the cervical spine is 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  An even higher 30 percent rating requires forward flexion of the cervical spine 15 degrees or less.  A still higher 40 percent rating requires unfavorable ankylosis of the entire cervical spine.  Whereas the  maximum 100 percent rating requires unfavorable ankylosis of the entire spine, that is, when also considering the adjacent thoracolumbar (thoracic and lumbar) segment.  38 C.F.R. § 4.71a, Diagnostic Code 5237.

According to Note (2), 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 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 provided in this note are the maximum that can be used for calculation of the combined range of motion.

According to Note (5), in pertinent part, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine or the entire 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.

In addition to a rating for orthopedic impairment (e.g., pain and consequent limitation of motion), the rater should also assess any associated objective neurological abnormalities separately, including bowel or bladder impairment and radiculopathy.  38 C.F.R. § 4.71a, Note (1).  Thus, when a Veteran has separate and distinct manifestations attributable to a single injury, he/she should receive compensation for these different manifestations under different Diagnostic Codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994).  This does not violate VA's 
anti-pyramiding regulation - 38 C.F.R. § 4.14.

Under the Formula for Rating IVDS based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.

According to Note (1), for purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

Under Diagnostic Code 5010, when there is arthritis due to trauma, i.e., 
post-traumatic arthritis, substantiated by X-ray findings, it is to be rated as degenerative arthritis under Diagnostic Code 5003.


Under Diagnostic Code 5003, degenerative arthritis (hypertrophic/osteoarthritis) is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved.

The Court has considered the question of functional loss as it relates to the adequacy of assigned disability ratings.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In DeLuca, the Court held that it is not enough for an examiner to state a range of motion.  Rather, 38 C.F.R. § 4.40 requires consideration of factors such as lack of normal endurance, function loss due to pain, and pain on use, including pain during flare-ups.  The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination.  Moreover, the Court stated there must be a full description of the effects of the disability on the Veteran's ordinary activity.  38 C.F.R. § 4.10.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to arthritis, but also should be applied in non-arthritis contexts).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.


The Veteran maintains that her current ratings are not high enough in light of the extent of impairment that her cervical spine disability causes.  She indicates that she has chronic pain in her neck and consequent limited range of motion.  In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event.  However, symptoms must be viewed in conjunction with the objective medical evidence of record, so not in a vacuum or isolation.

At the outset, the Board notes that, as to any complaints the Veteran had during the appeal period both before and since August 11, 2010, about pain radiating into and down her upper extremities, especially her left upper extremity, and/or pain in her hands, these symptoms were separately rated in the September 2004 rating decision, wherein service connection was granted for CTS of the hands, and in the September 2008 rating decision, wherein the hand disabilities were recharacterized to include pronator syndrome and left upper extremity radiculopathy.  See Esteban, 6 Vet. App. at 259.  This resulted in higher, and still separate, 20 percent disability ratings for each upper extremity retroactively effective from October 6, 2003, so back to the date of receipt of the underlying claim.  There is no objective medical evidence of other neurologic impairment associated with or due to the cervical spine disability that would warrant separate compensable ratings other than those already assigned for the service-connected right CTS and pronator syndrome and left upper extremity radiculopathy with CTS and pronator syndrome.

Entitlement to an Initial Rating higher than 10 percent for the Cervical Spondylosis from October 6, 2003 to August 10, 2010

The preponderance of the evidence is against assigning a higher rating for this initial period being considered.  Upon a review of the August 2004 VA (QTC) examination, forward flexion of the cervical spine was to 40 degrees.  In addition, during the August 2008 VA (QTC) examination, forward flexion of the cervical spine was once again to 40 degrees.  During each examination, pain further limited the range of motion in this direction to 35 degrees, so, for all intents and purposes, the "net" range of motion was to 35 rather than 40 degrees.  See Deluca, etc.

But even so, so even when considering the effect of the pain on range of motion, forward flexion of the cervical spine still was not limited to 30 degrees or less.  In addition, the combined range of motion of the cervical spine was not to 170 degrees or less.  Therefore, an initial rating higher than 10 percent under Diagnostic Code 5237 is not warranted for this initial period from October 6, 2003 to August 10, 2010.

There equally is no indication the Veteran had incapacitating episodes, meaning bed rest prescribed by a physician and treatment by a physician during this initial period.  Even if, as an example, there were occasions when the level of her pain and discomfort made getting out of bed difficult or not something that she necessarily wanted to do on that particular day, and even if she resultantly decided to stay in bed and rest because of her disability, this still would not be equivalent or tantamount to an incapacitating episode absent the required prescription of this by a doctor, much less of the required frequency or duration.  Thus, a 20 percent evaluation for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months is not shown.

There also is no evidence of any weakness, excess fatigability, or incoordination due to "flare-ups" or repeated or prolonged use that would warrant a higher level of compensation during this initial period.  During the August 2004 VA (QTC) examination, the range of motion was additionally limited by pain, by 5 degrees (from 40 to 35 degrees), but, as explained, not to the point of warranting a higher rating since it needed to be reduced to 30 degrees or less.  And there was no suggestion either of additional functional impairment because of fatigue, weakness, lack of endurance, or incoordination.  The same was true during the more recent August 2008 VA (QTC) examination.  As such, an increased rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 or the holding in DeLuca is not warranted for the Veteran's cervical spine disability from October 6, 2003 to August 10, 2010.


The Board also sees there is no medical evidence of neurologic disability associated with or due to the cervical spine disability other than the already service-connected right CTS and pronator syndrome and left upper extremity radiculopathy with CTS and pronator syndrome.  For instance, there was never any indication of associated bowel or bladder dysfunction.

In view of the foregoing, the criteria are not met for an initial rating higher than 10 percent for the cervical spondylosis from October 6, 2003 to August 10, 2010.  There instead is a preponderance of evidence against the notion of assigning an initial rating higher than 10 percent for this initial period.  And as the preponderance of the evidence is against this aspect of the appeal, 
the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to Rating higher than 20 percent since August 11, 2010

Effective August 11, 2010, the date of a VA examination showing increased symptoms, the RO assigned a higher 20 percent disability rating under Diagnostic Code 5237.  This, as mentioned, amounted to a "staging" of the rating.  See again Fenderson, 12 Vet. App. at 125-26.  As for the severity of the Veteran's service-connected cervical spondylosis since that date, the Board finds that an even higher rating is not warranted.

There is no evidence since that date and examination showing that forward flexion of the Veteran's cervical spine is limited to 15 degrees or less, nor is there any suggestion she has favorable ankylosis of her entire cervical spine or unfavorable ankylosis of her entire spine, which, again, means when additionally considering the adjacent thoracolumbar (thoracic and lumbar) segment.  Indeed, to the contrary, the August 11, 2010 VA examiner reiterated there was no cervical spine ankylosis, either favorable or unfavorable, and there equally had not been any during the earlier August 2004 and August 2008 VA (QTC) examinations.

Aside from the definition already mentioned and provided in Note (5) to DCs 5235-5243, ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint."  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)).  According to Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988), ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

While it is true to say the Veteran does not have normal range of motion of her cervical spine, so has limitation of motion of this segment, it is not also true to say she has ankylosis or even what amounts to it since she retains a quantifiable measure of motion in all directions (flexion, extension, lateral flexion, and rotation).  See 38 C.F.R. § 4.71a, Plate V.

During her August 11, 2010 VA examination, her forward flexion was limited to 30 degrees, and there was pain with active range of motion and repetitive motion, although there were no additional limitations after three repetitions of range of motion.  Because of this, i.e., greater limitation of motion than had been shown during her earlier August 2004 and August 2008 VA (QTC) examinations, the RO increased the rating for her cervical spine disability from 10 to 20 percent as of that August 11, 2010 VA examination.  But an even higher rating, meaning a rating higher than 20 percent, was and is not warranted because her forward flexion was not limited to 15 degrees or less, even when considering her pain.

And just as previously, there is no suggestion she has experienced any incapacitating episodes, again, meaning bed rest prescribed by a physician and treatment by a physician even since August 11, 2010.  Thus, an even higher 40 percent rating requiring incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months is not shown to be warranted.

There also is no evidence of any weakness, excess fatigability, or incoordination due to "flare-ups" of this disability that would otherwise warrant granting even greater compensation since August 11, 2010.  During the August 11, 2010 VA examination, although there was pain with active range of motion and on repetitive motion, there were no additional limitations after three repetitions of range of motion.  As such, an even higher rating under 38 C.F.R. §§ 4.40, 4.45, 4.59 or the holding in DeLuca is not warranted.

There also is no suggestion of neurologic disability associated with or due to the cervical spine disability warranting a separate compensable rating other than the already service-connected right CTS and pronator syndrome and left upper extremity radiculopathy with CTS and pronator syndrome.

Hence, the preponderance of the evidence against the Veteran's claim for a rating higher than 20 percent for her cervical spondylosis since August 11, 2010.  And as the preponderance of the evidence is against this aspect of her appeal, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 
Ortiz, supra; Gilbert, 1 Vet. App. at 49.

IV.  Extra-schedular Consideration

In considering this claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

In a precedent case, the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

Here, though, the symptoms associated with the Veteran's cervical spine disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, so the schedular rating criteria reasonably describe her disability (i.e., her chronic pain and the effect it has on her range of motion).  This is especially true since, as mentioned, she also is receiving additional compensation (i.e., has separate ratings) for the associated neurologic impairment (e.g., radiating pain and numbness) affecting her left and right upper extremities.  The staged 10 and 20 percent ratings are assigned based on her chronic pain and consequent limited motion of her neck or cervical spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237.  The separate 20 percent ratings she also has for the right CTS and pronator syndrome and left upper extremity radiculopathy with CTS and pronator syndrome under Diagnostic Code 8513 additionally compensate her for this additional disability associated with her cervical spine disability.  Indeed, she also has still additional ratings of 40 percent for her low back disability, specifically, for lumbosacral strain with disc space narrowing, and 10 percent for degenerative joint disease (i.e., arthritis) of her right shoulder, that is, even aside from still other ratings for other disabilities that include hypothyroidism, irritable bowel syndrome (IBS), and gastroesophageal reflux disease (GERD).

She has complained of having to take an inordinate amount of time off from work, at least partly because of her cervical spine disability, also citing her lumbar spine disability and headaches, and the August 2010 VA compensation examiner confirmed this increased absenteeism on account of these service-connected disabilities.  But according to 38 C.F.R. § 38 C .F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).  So this is not enough to warrant an extra-schedular rating.  Therefore, referral for this special consideration is not shown to be required.  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

The claim of entitlement to an initial rating higher than 10 percent for the cervical spondylosis from October 6, 2003 to August 10, 2010, is denied.

The claim of entitlement to a rating higher than 20 percent for this disability since August 11, 2010, also is denied.



REMAND

In a November 2005 rating action, the RO granted service connection for migraine headaches with dizziness.  The RO assigned a 30 percent disability rating under Diagnostic Codes 8100-6204, initially retroactively effective from October 28, 2003, but since changed to October 6, 2003.  The Veteran disagreed with this initial rating and perfected her appeal concerning this additional claim.  She maintains that her dizziness is due to a disability other than her migraines.  Therefore, she contends that a separate rating is warranted for her dizziness.

In August 2009, the Board remanded this claim.  The Board directed the RO/AMC to provide the Veteran a VA examination by a physician knowledgeable in neurology for the purpose of determining the degree of impairment due to the Veteran's migraine headaches.  The examiner was requested to provide an opinion as to whether any migraine headaches were prostrating in nature and, if so, whether the attacks had occurred on average once in two months over the last several months; had occurred on an average of once a month in the last several months; or had occurred very frequently with completely prostrating and prolonged attacks productive of severe economic inadaptability.  In addition, the examiner was to address the Veteran's complaints of dizziness and indicate whether her dizziness was associated with her headaches or, instead, attributable to some other problem she might be experiencing.

In December 2009, the Veteran had this requested VA examination.  The examiner stated that the Veteran's claims file was unavailable for review.  The Veteran indicated that she had about 2 to 3 mild headaches per week that were not incapacitating.  However, she noted that she had incapacitating headaches about 3 times per year.  According to her, when she had the incapacitating headaches, she would either not go to work or go home from work early.  She also noted dizzy episodes with problems of unsteadiness.  She said she experienced incapacitating dizzy episodes approximately 10 times per year.


In April 2010, the examiner from the December 2009 VA examination provided an addendum to the December 2009 VA examination report.  In the addendum, the examiner confirmed that he since had reviewed the Veteran's claims file.  According to the examiner, the Veteran had a history of hypoglycemia with an abnormal glucose tolerance test.  In November 2009, she was seen at neurology.  She had multiple episodes within the day of lightheadedness and problems with balance.  In December 2009, she had a normal electronystagmography (ENG) and there was no evidence of labyrinthitis dysfunction.  The examiner noted that, although the Veteran had undergone exhaustive testing, they were still unable to establish a diagnosis to explain what caused her problems of dizziness and imbalance.  She had a history of hypoglycemia but normal balance testing and normal ENG.  Thus, any attempt to establish a medical diagnosis as the cause of her imbalance would be merely speculative.

Although the examiner addressed the frequency and duration of the Veteran's headaches, he did not specifically comment on whether they cause severe economic inadaptability, which is an additional consideration in the rating assigned for this disability.  Thus, there has not been compliance with this August 2009 remand directive, and it is incumbent on the Board to ensure this compliance since it is neither optional nor discretionary.  Where the remand orders of the Board or the Court are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance.  Stegall, 11 Vet. App. at 268, 271.

In regards to the Veteran's dizziness and whether a separate rating is warranted for it, the Board sees that dizziness is not listed in the Rating Schedule.  Thus, it is rated by analogy under Diagnostic Code 6204 for peripheral vestibular disorders.  See 38 C.F.R. § 4.20.  Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness.  A 30 percent rating is warranted for dizziness and occasional staggering.  The Note following Diagnostic Code 6204 provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code.  Hearing impairment or suppuration shall be separately rated and combined.  38 C.F.R. § 4.87A, Diagnostic Code 6204.

In the March 2012 remand, the Board directed that the Veteran undergo another VA examination in order to determine whether she had vestibular disequilibrium.  The examination had to be performed by a physician with appropriate expertise.  The examiner specifically had to state whether there were objective findings supporting a diagnosis of vestibular disequilibrium.

Pursuant to the remand, the Veteran underwent another VA examination in April 2012.  It appears the examination was performed by M.C.R., RN, although the claims file was later reviewed by a physician, P.J., M.D.  The examiner concluded there were no objective findings to support a diagnosis of vestibular disequilibrium.  In a January 2013 Informal Hearing Presentation from the VFW, the representative argued that the Board's March 2012 remand instructions were not followed because the examination was not performed by a physician with appropriate expertise.  The representative also asserted that VA outpatient treatment records showed the Veteran had Meniere's disease.  The Board however is unable to find any diagnosis of Meniere's disease in the Veteran's VA treatment records.  So additional medical comment is needed concerning whether the Veteran has vestibular disequilibrium or Meniere's disease.

Additional VAMC records reflect that, in September 2012, it was noted that with respect to the Veteran's myoclonus/dizziness, a working but not definite diagnosis was seizure.  In a statement from the VFW, since dated in March 2013, the representative stated that VAMC outpatient treatment records showed that in February 2013 it was noted the Veteran was given medication, Divalproex, which seemed to help her dizziness.  According to the VFW representative, Divalproex is a drug used to treat seizure disorders.  Thus, the VA examiner needs to address whether the Veteran has a seizure disorder and, if so, whether her dizziness is a symptom of the disorder.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (indicating VA adjudicators must be able to distinguish or differentiate by competent evidence the extent of symptoms that is due to service-connected disability from that which is not - else, according to 38 C.F.R. §§ 3.102 and 4.3, resolve this doubt in the Veteran's favor and, for all intents and purposes, assume it is due to service-related causes or disability).

There also is a question as to whether the Veteran has an unsteady gait due to her dizziness.  In this regard, the Board recognizes that VAMC outpatient treatment records show that in May 2012 she underwent a tilt-table test.  The diagnoses were no orthostatic hypotension and transient posture orthostatic tachycardia.  However, during her earlier August 2008 VA examination, upon neurological evaluation, her coordination was abnormal with findings of tandem walk difficult because she was having migraine variant with dizziness during the examination.  The examiner diagnosed migraines with dizziness.  The examiner noted the Veteran had poor tandem walk.  Thus, on remand, the examiner must also address whether the Veteran has occasional staggering in addition to her dizziness.

In a December 2012 statement from the Veteran, she indicated that she was scheduled to undergo a sleep study test.  Outpatient treatment records from the VAMC in Washington, DC, show that in January 2013 the Veteran underwent a sleep study.  The diagnosis was mild obstructive sleep apnea.  However, in the December 2012 statement, she also indicated that she had a VA neurology appointment scheduled for March 2013.  There are no records in the file, however, from the Washington, DC, VAMC dated past February 2013.  So these additional VA records need to be obtained and considered.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, if not actual, notice and possession of these records since generated and maintained within VA's healthcare system, even if not at the moment physically present in the claims file).

Accordingly, this claim is REMANDED for the following additional development and consideration:

1.  Request copies of outpatient treatment records pertinent to the Veteran from the Washington, DC, VAMC from March 2013 to the present.  All records received should be associated with the claims file.


Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these records as this VA regulation requires.  Also appropriately notify the Veteran if unable to obtain these records.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional records, also schedule an appropriate VA compensation examination to ascertain the current severity of the Veteran's migraines and dizziness.  The examination should be performed by a physician with appropriate expertise in these type disorders.  The claims file and a copy of this remand must be made available to the examiner for review of the pertinent history of these disorders.  The examiner should specifically review the prior August 2008 and April 2012 VA examination reports.  All additional diagnostic testing or evaluation deemed warranted should be performed.

Following review of the claims file and clinical evaluation, the examiner must discuss whether the Veteran's headaches result in any characteristic prostrating attacks with an estimation as to the average number of any such attacks over the past several months.  This includes indicating whether the headaches have resulted in very frequent completely prostrating and prolonged attacks causing what amounts to severe economic inadaptability.

The examiner must also address the Veteran's complaints of dizziness and indicate whether she has occasional staggering as a consequence.  Moreover, the examiner must state whether the Veteran's dizziness is a symptom of an underlying disability other than migraines.  In this regard, the examiner must specifically address the following: 

a.  Are there objective findings supporting a diagnosis of vestibular disequilibrium? 

b.  Are there objective findings supporting a diagnosis of Meniere's disease?  If so, is the Veteran's dizziness a symptom of such disease?  

c.  Are there objective findings supporting a diagnosis of a seizure disorder?  If so, is the Veteran's dizziness a symptom of such disorder?  

A complete rationale for all opinions expressed must be provided, if necessary citing to specific findings in the record supporting conclusions.

3.  Then readjudicate this remaining claim for a higher (and possibly separate) rating for the headaches and dizziness.  If additional compensation is not granted to the Veteran's satisfaction, send her and her representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs