Citation Nr: 1318017 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-20 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating greater than 30 percent for cervical strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to September 1974 with additional periods of Army National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The case was brought before the Board in May 2005, July 2009, February 2011, and most recently in November 2012, at which time the above stated claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him an appropriate VA examination as well as proper notice. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. During the most recent remand period, in March 2013, the AMC granted service connection for radiculopathy of the left and right upper extremities, assigning separate 20 and 30 percent ratings, respectively, effective November 16, 2004. And since the Veteran did not, in response, appeal either the ratings or effective date assigned for those disabilities, they are not at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The AMC also increased the rating for the cervical spine disability to 30 percent, effective March 23, 1999 (prior to his current claim). Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remained on appeal, as the Veteran has not indicated his desire to withdraw that issue. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT The Veteran's cervical spine disability has been primarily manifested by pain on use and moderate to severe limitation of motion and without any incapacitating episodes. CONCLUSION OF LAW Entitlement to an evaluation in excess of 30 percent for the cervical spine disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.71a, Diagnostic Code 5290 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective September 23, 2002; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243, effective September 26, 2003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in May 2004. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In a March 2006 letter, the Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claim, and subsequent readjudication in October 2007, October 2008, September 2010, July 2012, and January 2013 supplemental statements of the case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, VA outpatient treatment reports, adequate VA examinations and opinions as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's November 2012 remand directive, the RO reviewed additional VA treatment records pertaining to the cervical spine disability and applied both the old regulations as well the amended criteria for rating the Veteran's cervical spine disability. Accordingly, the Board finds that VA's duty to assist with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its November 2012 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . The Veteran's cervical spine disability has been rated 30 percent disabling from the beginning of the appeal. The Veteran claims his cervical spine disability is more severe than currently rated. Based on in-service medical care, service connection was granted for residuals of cervical spine strain in a September 1999 rating action. A 10 percent evaluation was assigned effective in March 1999. The rating was increased to 20 percent in a July 2000 rating action. The RO received the Veteran's claim on September 8, 2003. The regulations for evaluation of certain disabilities of the spine, including intervertebral disc syndrome, were revised, effective on September 23, 2002. Additional revisions were made to the evaluation criteria for disabilities of the spine, as well as re-numbering-effective on September 26, 2003-for purposes of updating the rating schedule with current medical terminology and unambiguous criteria to reflect medical advances since last reviewed. (Former Diagnostic Code 5290 is now Diagnostic Code 5237). It should be pointed out that the revised rating criteria may not be applied to a claim prior to the effective date of the amended regulation. See 38 U.S.C.A. § 5110(g); Rhodan v. West, 12 Vet. App. 55 (1998). VA outpatient records dated in February 2003 show that the Veteran complained of increasing neck pain for the previous 2-3 days. Radiological study revealed mild to moderate radiographic spondylosis with possible fusion of the C2 and C3 vertebral bodies. The Veteran refused an electromyograph (EMG) study. An August 2003 magnetic resonance imaging (MRI) revealed early degenerative disc disease (DDD) throughout the cervical spine, disc herniation at C2-C3 and C4-C5 and moderate central stenosis. A VA examination was conducted in July 2004. The Veteran reported that he had daily pain that he considered was 10 on a scale of 1-10. The pain was aggravated by weather, driving, using his seatbelt, and sleeping in different positions. He worked as a representative for Social Security Administration and his neck pain bothered him all the time at work. He reportedly missed up to three consecutive days of work due to his neck condition. He had daily flare ups which would cause him to stop and rest. He did not have any incapacitating episodes or instances where he is unable to move his neck. The ranges of motion for the cervical spine were 30 degrees of flexion, 30 degrees of extension, and 40 degrees of right lateral bending, with slight pain over the trapezius at 40. Left lateral flexion was 40 degrees with no pain or limitation. Right lateral rotation was 40 degrees with no pain or limitation. Left lateral rotation was 45 degrees with no pain or limitation. On repetitive motion of flexion and extension, there was no decrease in motion but there was pain over the left trapezius but not cervical spine. On repetitive right and left rotation there was no decrease in motion but increased pain. There was no limitation caused by fatigue, weakness, or lack of endurance on repetitive motion. There was no limitation by fatigue, weakness, or lack of endurance following repetitive use. The upper extremities motor strength was 5/5 and sensation was intact. There was no limitation due to weakness, fatigability, incoordination, or flare ups. Reportedly, his cervical spine disability did not affect his usual occupation. He did not have any incapacitating episodes. VA outpatient records dated between 2004 and 2007 show that the Veteran continued to complain of neck pain as well as radiculopathy to the upper extremities. (As noted the RO has recently granted service connection for radiculopathy of the upper extremities.) At VA examination in January 2007, the Veteran continued his complaints of neck pain. He reported no incapacitating episodes. On examination, he walked with an antalgic gait. There was mild thickness of the cervical spine, but his range of motion appeared to be well preserved. He had forward flexion to 35 degrees, which was limited by pain; extension to 45 degrees without pain; left and right lateral bend to 30 degrees with mild reproducible pain at 30 degrees; and left and right rotation to 60 degrees with discomfort beginning at 40 degrees. There was no significant tenderness to palpation along the paraspinal musculature region or the spinous processes of the cervical spine. On peripheral nerve examination, there were no noted abnormalities. He had 5/5 strength in the upper extremities; no muscle atrophy; 2+ symmetrical reflexes of the biceps, triceps, and brachiodialis; with no evidence of clonus or primitive reflexes. X-ray revealed some calcification and possible auto fusion of the C2-C3 discs. There was mild degeneration of the C4-C5 disk level and mild degeneration of the C6-C7 level. There were no new findings noted on the MRI report. VA outpatient records dated between 2007 and 2009 show that he continued receiving medical care for his cervical spine complaints. There was no muscle spasm noted on VA examination in September 2009. He continued his complaints of neck pain. He was able to only flex to 15 degrees. He could extend to 45 degrees without functional limitation and pain at 45 degrees. He could rotate to 30 degrees on the right without functional limitations but only 15 degrees to left with functional limitations due to pain. He was able to tilt to 20 degrees, bilaterally with functional limitations due to pain. Motor strength in the upper extremities at the elbow and hand was essentially normal with 5/5 strength. Sensory examination was intact. The ranges of motion during passive, active, and on three repetitions were the same. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare-ups. There were no incapacitating episodes, radiating pain, or neurologic findings. His disability did not affect his usual occupation or daily activities. On neurological examination in August 2010, there was no clinical evidence of radiculopathy. The VA examiner was unable to conduct an EMG of the upper extremities due to the Veteran's fear of pain. However, his physical examination of the upper extremities appeared intact as there were no reflex changes. On VA examination in July 2011, he had 60 degrees of flexion; 20 degrees of extension; and 60 degrees of both lateral bending and rotation, bilaterally. All of the motions were without painful limitation. There were no abnormalities reported on sensory and motor examinations of the upper extremities. The deep tendon reflexes were equal. There was no evidence of atrophy. There was no reported limitation of motion of the elbows, wrists, hands, or fingers. The ranges of motion during passive, active, and repetition were the same. There was no additional functional impairment due to pain, weakness, fatigability, coordination, or flare-ups. There were no incapacitating episodes, radiation of pain, or neurological findings. There was no effect on his usual occupation or daily activities. On the most recent VA examination in June 2012, the ranges of motion were forward flexion to 35 degrees, extension to 35 degrees, right lateral flexion to 35 degrees, left lateral flexion to degrees to 30 degrees, and rotation to 60 degrees, bilaterally. All of the motion endpoints were reportedly where his pain began. There was no loss in motion or functional loss on repetitive use. There was no reported radiculopathy. It was noted that the cervical spine condition did not impact his ability to work. The Board will initially determine if a higher rating is warranted under the old law (Diagnostic Codes 5290 and 5293). A rating for a cervical strain may be assigned under Diagnostic Codes 5290 or 5293. Although, no more than one of these ratings may be assigned without violating the rule against the pyramiding of disabilities. 38 C.F.R. § 4.14. Under the old rating criteria, limitation of motion of the cervical segment of the spine was rated as 10 percent disabling when slight, 20 percent disabling when moderate and as 30 percent disabling when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290. 38 C.F.R. § 4.71a , Diagnostic Code 5293 provided that a 10 percent evaluation was warranted for mild intervertebral disc syndrome. Moderate intervertebral disc syndrome with recurring attacks warrants a 20 percent rating. When the condition is severe with recurring attacks and intermittent relief, a 40 percent rating is warranted. 38 C.F.R. Part 4, § 4 .71a, Diagnostic Code 5293. Functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. For reasons explained immediately below, upon review of all pertinent medical evidence, the Board concludes the Veteran is not entitled to an increased rating for his spine disability at any time period. In considering the limitation of motion and pain during this period, the Veteran reported multiple complaints including constant pain. At the reported VA examinations, the forward flexion ranged from 15 to 60 degrees, extension ranged from was 20 to 45 degrees, lateral flexion ranged from 20 to 60 degrees on each side, and rotation ranged from 15 to 60 degrees on each side. This does not support the assignment of a higher disability evaluation and approximate no more than the limitation of motion contemplated by his 30 percent rating. A rating higher than 30 percent is not available under DC 5290. The Board considered whether the Veteran should be granted a rating in excess of 30 percent under the old regulations that relate to intervertebral disc syndrome. Severe intervertebral disc syndrome with recurring attacks and intermittent relief warranted a 40 percent rating. In this case there was no evidence of muscle spasm. The sensory and motor examinations were intact, and there were no abnormal reflexes. Therefore a higher rating is not warranted. In considering the new regulations: the criteria for a 30 percent rating are forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. The criterion for a 40 percent rating is unfavorable ankylosis of the entire cervical spine. A note (2) to this code indicates that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Another note (6) indicated that disability of the thoracolumbar and cervical spine segments will be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the revised regulations, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The evidence concerning the level of the Veteran's cervical spine disability does not support the assignment of a higher disability evaluation under the new laws and regulations. While there is one examination report where his cervical spine motion was limited to 15 degrees (at the September 2009 examination), for the most part, during this appeal period his flexion was 30 degrees or more. The Board takes into consideration periods of exacerbations of his disabilities. The Veteran's forward flexion of the cervical spine exceeded 15 degrees and there is nothing suggesting unfavorable ankylosis of the entire cervical spine. The Veteran is currently being rated based on cervical orthopedic and neurological residuals, namely 20 and 30 percent ratings as of November 2004 for radiculopathy of the left and right upper extremities, respectively, as well as a 30 percent rating for cervical strain. A higher rating is not warranted with respect to IDVS as there is no medical evidence that any physician prescribed bed rest for the Veteran's cervical spine disability during the relevant time period. In regard to pain, while the Veteran reports pain and stiffness, the evidence concerning the level of the Veteran's cervical spine disability does not support the assignment of a higher disability evaluation. For the most part, there was no additional loss of function on repetitive testing. The ranges of motion during passive, active, and repetitive motions were the same. There was no additional functional impairment due to pain, weakness, fatigability, coordination, or flare-ups. There were no incapacitating episodes, radiation of pain, neurological findings, or noticeable effect on his usual occupation or his daily activities. As such, the Board finds that the pain on use of is neck which the Veteran described to examiners is more than adequately and appropriately compensated at the 30 percent level and does not warrant an evaluation in excess of 30 percent under 38 C.F.R. §§ 4.40, 4.45, or DeLuca, supra. In conclusion the evidence shows that the Veteran's cervical spine disability was no more that those manifestations outlined under a 30 percent rating, under either the old or new law. The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court has 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, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran'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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's symptomatology and limitation in occupational functioning for the disability on appeal is reasonably contemplated by the rating schedule. The Veteran's symptoms of chronic pain and stiffness are adequately contemplated in the current ratings assigned for his cervical spine. The schedular criteria specifically provides for rating spine disabilities on the basis of limitation of motion; or ankylosis; or incapacitating episodes. See 38 C.F.R. §§ 4.71a, DCs 5235-5243. Additional manifestations of the Veteran's service-connected cervical spine disability, to include related radiculopathy have been contemplated by the separate ratings assigned for each upper extremity. Further, and as indicated in the Board's decision, although the schedular criteria provide for evaluations higher than the currently assigned ratings, his degenerative diseases of the cervical spine have not manifested with the symptoms required to achieve such higher ratings. For these reasons, the Veteran's disability picture (e.g. his disability level and cervical spine and neuropathy symptomatology) is adequately, and appropriately, contemplated by the applicable schedular rating criteria. ORDER An evaluation in excess of 30 percent for the residuals of cervical spine strain is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs