Citation Nr: 1316706 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-31 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 10 percent for cervical strain. ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2004. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. Such file includes VA medical records, dated from August 2009 to September 2012, which the agency of original jurisdiction (AOJ) considered in the December 2012 supplemental statement of the case. FINDING OF FACT For the entire appeal period, the Veteran's cervical strain has been productive of stiffness, pain, and tenderness with cervical spine flexion to 35 degrees and a combined range of motion of 205 degrees, without scoliosis, reversed lordosis, abnormal kyphosis or muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; incapacitating episodes; or neurological impairment. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating in excess of 10 percent for a cervical strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held 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 include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his cervical strain from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his cervical strain was granted and an initial rating was assigned in the March 2009 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As relevant, the Veteran's post-service VA treatment records have been obtained and considered. Private medical evidence, documenting physical therapy for back pain, and dated from 2004 through 2006, prior to the effective date of service connection, is also of record. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in December 2008. He has not alleged that such is inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected cervical strain as it includes an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. The Board notes that the Veteran has not alleged worsening since December 2008 VA examination. In this regard, while he has claimed that his cervical strain is worse than the current 10 percent rating, he has not contended that the condition has increased in severity since the December 2008 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. The Board notes that a supplemental statement of the case, issued in December 2012, was returned as undeliverable, and the present whereabouts of the Veteran are unknown. The last record of contact from the Veteran to the RO appears to have occurred when he filed a claim for service connection for anxiety in January 2010. The address currently on file for the Veteran matches the address provided by the Veteran at that time, with previous correspondence having successfully been mailed to that address. It is the burden of the Veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board also notes that "[T]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has apparently moved and not provided VA with a current address. Consequently, no further assistance is required and the Board will proceed on the record as it stands. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Board has reviewed all of the evidence in the Veteran's Virtual and paper claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran contends that he is entitled to a higher disability rating for his cervical strain. Such disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, as 10 percent disabling, effective September 17, 2008. The General Rating Formula for Diseases and Injuries of the Spine provides that, 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, the following ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation requires forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation requires evidence of unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. On VA examination in December 2008, the Veteran described his cervical strain as resulting in stiffness and a mild, dull ache occurring daily and lasting for minutes at a time. He denied radiation of pain, flare-ups and incapacitating episodes. He reported no limitations to walking. Examination revealed that the Veteran's posture, head position, and gait were normal and he had no abnormal spinal curvatures or spasms. Tenderness was noted. The examiner indicated that the muscle spasm, localized tenderness, or guarding was severe enough to be responsible for abnormal gait or abnormal spine contour. Motor, sensory, and reflex examinations were normal. Range of motion testing showed 35 degrees flexion, 30 degrees extension, 25 degrees left lateral flexion, 20 degrees fright lateral flexion, 45 degrees left lateral rotation and 50 degrees right lateral rotation. There was no pain with motion or repetitive motion and no additional limitations on range of motion after repetition. X-ray results showed vertebrae of normal height and alignment, with unremarkable disc spaces and no fractures or dislocations. A review of the Veteran's systems was negative for any associated symptoms, including urinary/fecal incontinence, erectile dysfunction, numbness or paresthesia. The Veteran was diagnosed with cervical strain, with the examiner noting "no significant or minor abnormality." The examiner noted that as the cervical strain results in decreased mobility and pain, it would have significant effects on the Veteran's occupation, though because he was a student he was not presently working at the time. Mild to no impact on the Veteran's usual daily activities was noted. VA treatment records, dated August 2009 through September 2012 are silent for any complaints relating to the Veteran's cervical spine. Additionally, a December 2010 record reveals full range of motion of the neck. The Veteran has also submitted lay statements in support of his claim in October 2008. In this regard, a statement from his stepfather reflects that his neck disability results in chronic pain that inhibits his ability to work and diminished his quality of life. Likewise, the Veteran's fiancé indicated that the Veteran's neck disability results in physical discomfort. Additionally, his mother reported that he experienced pain and discomfort due to his neck disability. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the orthopedic manifestations of the Veteran's cervical strain are appropriately evaluated as 10 percent disabling for the entire appeal period. As previously noted, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. None of the evidence of record reports a range of motion indicative of a 20 percent disability rating. The December 2008 VA examination reveals that the Veteran demonstrated cervical spine flexion to 35 degrees. The objective medical evidence shows that his combined range of motion totaled 205 degrees. A December 2010 VA treatment record showed full range of neck motion. Moreover, while the Veteran had tenderness (but no muscle spasms or guarding) and the examiner indicated that the muscle spasm, localized tenderness, or guarding was severe enough to be responsible for abnormal gait or abnormal spine contour, the Veteran's cervical strain does not result in an abnormal gait or spine contour. Specifically, examination revealed that the Veteran's posture, head position, and gait were normal and he had no abnormal spinal curvatures. Therefore, despite the Veteran's tenderness and the examiner's indication that such would result in an abnormal gait or spine contour, such is not objectively demonstrated. Additionally, there is no evidence of ankylosis. Thus, an initial disability rating in excess of 10 percent is not warranted under the criteria of the General Rating Formula. There is also no evidence that the Veteran's range of motion was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance after three repetitions. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of function in response to repetitive motion that would support an evaluation in excess of the 10 percent assigned during the appeal period. See DeLuca, supra; Mitchell, supra; 38 C.F.R. §§ 4.40,4.45, 4.59. The Veteran has not alleged that, when his back pain occurs, he has to be limited to bed rest. The medical evidence is also negative for any incapacitating episodes of the Veteran's cervical strain during the entire appeal period. An "incapacitating episode" for purposes of Diagnostic Code 5243 is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Accordingly, evaluation of the Veteran's disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his cervical strain. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report his cervical spine symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. Likewise, his stepfather, fiancé, and mother can report what they have witnessed, to include the Veteran's pain and discomfort. They are not, however, competent to identify a specific level of disability relating a cervical spine disability to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiner who examined him during the current appeal and who has provided relevant medical findings in conjunction with the examination. In this regard, the medical findings (as provided in the examination report) directly address the criteria under which his disability is evaluated. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his cervical strain. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during the appeal period. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5237, 5243, 4.124a, Diagnostic Code 8520; see also Fenderson, supra. Nor is an increased disability rating warranted based upon the granting of a separate neurologic disability rating related to the cervical spine. Here, the evidence of record does not show the existence of any associated neurologic abnormalities, such as bladder or bowel complaints, or radiculopathy, that are related to the service-connected cervical strain. Moreover, the objective evidence does not show, nor does the Veteran allege, that he experiences any neurological symptomatology due to his service-connected cervical strain. In fact, the Veteran's motor, sensory, and reflex examinations in December 2008 were all normal. Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected cervical spine; however, the Board finds that his symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant'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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected cervical strain with the established criteria found in the rating schedule. The Board finds that the Veteran's cervical strain symptomatology is fully addressed by the rating criteria under which such disability is rated. Specifically, the Veteran's 10 percent rating for his cervical strain contemplate his subjective complaints of stiffness and pain as well as his functional impairment resulting from tenderness and limitation of range of motion. Therefore, there are no additional symptoms of the Veteran's cervical strain that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. In the instant case, the Veteran has not alleged that his cervical strain renders him unemployable. Moreover, VA treatment notes, dated September 2012, indicate that the Veteran was presently employed. Therefore, the issue of a TDIU has not been raised and no further consideration of such is necessary. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for cervical strain. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER An initial rating in excess of 10 percent for cervical strain is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs