Citation Nr: 1318833	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  10-08 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a separate disability rating for a neurological manifestation of the cervical spine disability in the left upper extremity. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL


The Veteran; the Veteran's spouse


ATTORNEY FOR THE BOARD

T. M. Gillett, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1948 to May 1968. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claim for an increased rating for degenerative joint disease of the cervical spine with arthritis. 

The Veteran and the Veteran's spouse testified at a formal hearing at the RO before a decision review officer (DRO) in July 2010 (DRO hearing). A transcript of that hearing has been associated with the claims file. 

In January 2013 the Board in pertinent part denied the increased ratings for service-connected cervical spine and thoracolumbar spine disabilities; denied a higher initial rating for radiculopathy of the right upper extremity; and granted a separate disability rating for a neurological manifestation of the thoracolumbar spine disability in the left lower extremity. Therefore, those issues are no longer in appellate status and are not before the Board.

In January 2013 the Board also remanded the issue before the Board, specifically entitlement to a separate disability rating for a neurological manifestation of the cervical spine disability in the left upper extremity, to the VA Appeals Management Center (AMC) in Washington, DC, for additional development. After performing the requested development, the AMC returned to the Board for further appellate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

The probative evidence of record demonstrates that the Veteran's neurological disorder of the left upper extremity, specifically carpal tunnel syndrome (CTS), is not a neurological manifestation of the Veteran's cervical spine disability.  


CONCLUSION OF LAW

The criteria for a separate disability rating for a neurological manifestation of the cervical spine disability in the left upper extremity have not been met. 38 U.S.C.A. 
§§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8515 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating 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) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The claim before the Board arose from the Veteran's claim for an increased rating for a service-connected cervical spine disability. In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

VA satisfied its duty to notify the Veteran by issuing a notice letter in August 2008. In this notice letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information regarding increased ratings required by Vazquez-Flores.  

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, and reports of a VA medical examinations provided in September 2008 and January 2012, a June 2012 addendum to the January 2012 VA medical examination report, a March 2013 VA medical opinion, and an April 2013 addendum to the March 2013 VA medical opinion.  

In January 2013, the Board remanded the Veteran's claim to the AMC, requesting that the AMC procure a VA medical opinion regarding the nature and etiology of the Veteran's neurological disorder of the left upper extremity. Specifically, the Board requested that the AMC request that a VA examiner provide an opinion regarding whether the Veteran's service-connected cervical spine disability caused or permanently worsened a neurological disorder of the left upper extremity. In March 2013, the AMC procured a VA medical, performed by a qualified VA examiner who also had performed a January 2013 VA medical examination. In April 2013, the same VA examiner provided an addendum to the March 2013 medical opinion. The Board notes that the March 2013 VA medical opinion and April 2013 addendum include opinions regarding the etiology of the Veteran's neurological disorder of the left upper extremity, based on the evidence of record, with references to the evidence reviewed. Therefore, the Board finds that the March 2013 VA medical opinion and April 2013 addendum have probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records). Therefore, the Board finds that the AMC complied with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Regarding the July 2010 DRO hearing, 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 DRO who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2010 DRO hearing, the DRO specifically noted that the Veteran was seeking an increased rating for a cervical spine disability. During the hearing, both the DRO and the Veteran's representative asked questions regarding pertinent evidence showing neurological impairment of the upper extremities related to the service-connected cervical spine disability not currently associated with the claims folder. Partially as a result of this questioning, in the January 2013 Decision and Remand, the undersigned Veterans Law Judge (VLJ) determined that a VA medical opinion was necessary to assist in determining the etiology of the Veteran's neurological disorder of the left upper extremity. The Board subsequently remanded the claim. In this case, the DRO substantially complied with the requirements of Bryant.

The Veteran has not made the RO, the AMC, or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).

The Merits of the Case

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue (i.e., an increased rating claim), the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.
38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).

In addition, although this matter concerns the question of whether a neurological disorder is a manifestation of an already service-connected disability, the Board notes that service connection may be granted for a separate disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 (2012).

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or 
(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, a veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board has considered all evidence of record.  See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case").  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal.

The Veteran's cervical spine disability, specifically degenerative joint disease, is currently rated as 20 percent disabling under Diagnostic Code 5243, under the criteria found at the General Rating Formula for Diseases and Injuries of the Spine. As noted above, in the January 2013 Decision and Remand, the Board found that the Veteran's cervical spine disability symptomatology, in and of itself, did not more nearly approximate that required for an increased rating under the applicable rating criteria. The General Rating Formula provides that separate ratings are to be provided for any objective neurologic abnormalities related to a service-connected cervical spine disability. 38 C.F.R. § 4.71a. Because the evidence indicates that the Veteran's diagnosed left upper extremity disorder, specifically CTS, is not a manifestation of the Veteran's service-connected cervical spine disability, the Veteran's claim will be denied.

Briefly reviewing the evidence of record, in March 1955 service treatment records, service examiners noted treating the Veteran for injuries incurred during a parachuting accident. The service examiners noted that, while attempting to land, the Veteran collided with high-tension wires. The service examiners noted treating the Veteran for, amongst other injuries, a laceration of the left arm. The records indicate that the Veteran was returned to full duty in April 1955.

In November 1960 service treatment records, service examiners noted treating the Veteran for numbness and tingling of the left arm and fingers. The service examiner diagnosed questionable neuritis.

Subsequent service treatment records indicate treatment for degenerative arthritis of the cervical spine and radicular symptomatology in the right upper extremity; however, the subsequent service treatment records contain no notation indicating treatment or diagnosis for symptomatology related to a neurological disorder of the left upper extremity. 

In a March 1994 VA medical examination report, the Veteran reported having neck and upper back pain with radiation into his right arm. The Veteran did not report experiencing any radicular symptomatology in his left arm. The Veteran also indicated that he had occasional pain in the metacarpal phalangeal (MP) joints of the hands. After examination, the VA examiner diagnosed arthritis/arthralgias secondary to degenerative arthritis, involving the neck, back, and hands. A subsequent bilateral hand X-ray was negative.  

In a February 2000 VA medical examination report, the Veteran again reported experiencing neck and upper back pain, and tingling and numbness radiating down to the right arm to the right hand. The Veteran did not report experiencing any radicular symptomatology involving the left upper extremity. Upon examination, the VA examiner noted that sensation to pinprick was intact in the bilateral upper extremities. The VA examiner noted that the Veteran had a positive Tinel's sign bilaterally. The VA examiner diagnosed possible radiculopathy versus CTS. In explaining this diagnosis, the VA examiner noted that the Veteran reported experiencing radicular pain symptomatology in the right arm and hand. The VA examiner reported that these symptoms could be radicular in nature, even though the Veteran had a positive Tinel's sign.

In an April 2000 VA treatment record, a VA examiner noted performing nerve conduction studies of the Veteran's upper extremities. After examination, the VA examiner diagnosed an abnormal study showing findings compatible with a median neuropathy at both wrists such as seen in individuals with CTS.

In a February 2002 VA medical examination report, the Veteran reported experiencing pain radiating from the neck and upper back into the left arm down to the level of the elbow. The Veteran also reported experiencing numbness and tingling of the left arm down to the hand. The Veteran reported experiencing radicular symptomatology in the right upper extremity, but stated that he experienced those symptoms were less severe and less recurrent than those in the left upper extremity. 

The February 2002 VA examiner noted that a December 2001 left shoulder X-ray report was normal. Upon neurological evaluation, the VA examiner noted slightly diminished strength in the shoulders secondary to pain upon testing. The VA examiner also reported finding slightly diminished strength throughout the entire left upper extremity associated with pain on testing. The VA examiner noted that sensation to light touch was intact in the upper extremities. The VA examiner did not offer a diagnosis regarding the neurological symptomatology.  

In a July 2006 VA medical examination report, otherwise unrelated to the issue on appeal, the VA examiner noted that the Veteran had been diagnosed previously as having symptoms similar to CTS. At the time of examination, the Veteran reported experiencing radicular symptomatology in the right upper extremity, rather than the left.  Upon examination, the VA examiner noted that the Veteran had normal strength in the left upper extremity and a mildly positive Tinel's sign at both wrists. 

In a September 2008 VA medical examination report, the Veteran reported experiencing pain radiating to the right side of the neck. Upon examination, the VA examiner noted normal deep tendon reflexes bilaterally, trace biceps reflexes bilaterally, trace triceps reflexes bilaterally, and trace brachioradialis reflexes bilaterally. The VA examiner noted that the Veteran had normal and bilaterally equal sensation to pinprick and light touch. The VA examiner further reported finding no evidence of radiculopathy. The VA examiner diagnosed severe degenerative disc disease of the cervical spine.

In a January 2012 VA medical examination report, the Veteran reported experiencing pain and radicular symptomatology in the right shoulder and right upper extremity. The January 2012 VA examiner noted that deep tendon reflexes were 1+ on the left in the biceps and 2+ on the left in the triceps as well as the brachioradialis. The January 2012 VA examiner diagnosed mild paresthesias and mild numbness of the left upper extremity.

In a June 2012 addendum to the January 2012 VA medical examination report, the January 2012 VA examiner was asked to clarify the findings related to the left upper extremity. The January 2012 VA examiner opined that the left upper extremity neuropathy was less likely than not related to the Veteran's cervical spine disability. In explaining this conclusion, the January 2012 VA examiner explained that, upon examination, the Veteran did not have objective findings of radiculopathy in the left upper extremity and his neurologic symptoms in the left upper extremity were at least as likely as not caused by carpal tunnel syndrome. The January 2012 VA examiner also noted that the neurological findings in the left upper extremity were most consistent with carpal tunnel syndrome, which was diagnosed in 2002 by NCV studies.

In a March 2013 VA medical opinion, the January 2012 VA examiner noted reviewing the claims file prior to writing her opinion. The January 2012 VA examiner specifically noted reviewing the treatment records regarding both in-service and post-service treatment for left upper extremity neurological symptomatology. Having done so, the January 2012 VA examiner diagnosed cervical spine degenerative disc disease with motor radiculopathy to the right arm and sensory radiculopathy to the neck and shoulder. The January 2012 VA examiner specifically noted that the Veteran did not have any radiculopathy to the left arm. Moreover, the January 2012 VA examiner diagnosed bilateral CTS, affecting the bilateral hands, wrists, and fingers. The January 2012 VA examiner opined that the Veteran's currently diagnosed left upper extremity disorder was less likely than not caused or aggravated by his service-connected cervical spine disability. In explaining this opinion, the January 2012 VA examiner wrote that the Veteran's cervical spine degenerative disc disease was a degenerative process involving disc and vertebral bodies, while CTS was a median entrapment neuropathy involving compression in the carpal tunnel at the wrist. Therefore, the January 2012 VA examiner noted that there was no nexus between the cervical spine degenerative disc disease and the CTS.  

In an April 2013 addendum to the March 2013 VA medical opinion, the January 2012 VA examiner again specifically noted reviewing the treatment records regarding both in-service and post-service treatment for left upper extremity neurological symptomatology. Having done so, the January 2012 VA examiner opined that, having reviewed the evidence of record, the Veteran's left upper extremity CTS was less likely than not caused or aggravated by his service-connected cervical spine disability. In support of this opinion, the January 2012 VA examiner again stated that there Veteran's cervical spine degenerative disc disease was a degenerative process involving disc and vertebral bodies, while CTS was a median entrapment neuropathy involving compression in the carpal tunnel at the wrist. The January 2012 VA examiner specifically stated that neither disorder could be the cause of the other or could be in any manner related to the other. Therefore, the January 2012 VA examiner noted that there was no nexus between the cervical spine degenerative disc disease and the CTS.  

The January 2012 VA examiner's opinions, noted in the January 2012 VA medical examination report, the June 2012 addendum, the March 2013 VA medical opinion, and the April 2013 addendum are competent and credible medical evidence in this matter because they are factually informed, medically qualified and fully explained. In her reports, the January 2012 VA examiner indicated that her opinions were based on a review of the Veteran's complete medical history and, in explaining her opinions, the VA examiner thoroughly explained why the Veteran's CTS was unrelated in all manners to the service-connected cervical spine disability. 

The Veteran has not presented evidence, to include any lay evidence, specifically indicating that his left upper extremity neurological symptomatology related to his service-connected cervical spine disability. 

As noted above, the Veteran has been diagnosed with CTS, a disorder related to compression of the carpal tunnel at the wrist. The medical evidence clearly indicates that the Veteran's CTS clearly is not a manifestation of the Veteran's service-connected cervical spine disability and, therefore, a separate rating for a neurological manifestation of the cervical spine disability in the left upper extremity is not warranted. Although the Veteran has not filed a claim for service connection for the CTS disorder, and the claim was inferred from the record as part of the claim pertaining to an upper extremity disorder, the evidence indicates that the CTS disorder was neither caused nor aggravated by the Veteran's service-connected cervical spine disability, specifically degenerative disc disease of the discs and vertebral bodies in the cervical spine, as there is no relationship between the two disorders. 

The preponderance of the evidence is against the claim, and a separate rating for a neurological manifestation of the cervical spine disability in the left upper extremity is denied. 38 U.S.C.A. § 5107(b); Gilbert, at 49.


ORDER

A separate disability rating for a neurological manifestation of the cervical spine disability in the left upper extremity is denied.  




____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs