Citation Nr: 1320992 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-14 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a higher initial rating for cervical fusion and stabilization of C4-5 and C5-6 (neck disability), evaluated as 10 percent disabling prior to October 4, 2007, and as 20 percent disabling thereafter. 2. Entitlement to a higher initial rating for left upper extremity radiculopathy associated with cervical fusion and stabilization of C4-5 and C5-6, evaluated as 10 percent disabling prior to January 8, 2013, and as 30 percent disabling thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1997 to July 2000 and from June 2003 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2006, the Veteran moved, and the claims file was transferred to the Waco RO as the agency of original jurisdiction (AOJ). She subsequently moved again, and in October 2009, the claims file was permanently transferred back to the Houston RO as the AOJ. In August 2012, the Board remanded these issues to the AOJ for further development and consideration. As discussed below, the evidence is sufficient for a fair adjudication of the claim for a higher rating for left upper extremity radiculopathy. However, further development is needed as to the neck disability. With regard to the current ratings, in the April 2006 rating decision, the AOJ granted service connection for cervical fusion and stabilization of C4-5 and C5-6 (neck disability) and associated left upper extremity radiculopathy, and assigned an initial 10 percent rating for each effective from October 1, 2005. In a November 2007 rating decision, the AOJ awarded a higher rating of 20 percent for the neck disability effective October 4, 2007. Additionally, in a February 2013 rating decision, the AOJ awarded a higher rating of 30 percent for left arm radiculopathy effective January 8, 2013. As the Veteran has not expressed satisfaction with these higher staged ratings, and the ratings are less than the maximum available under the applicable criteria, the matters remain on appeal since the grant of service connection. See AB v. Brown, 6 Vet. App. 35 (1993). As noted previously, the AOJ also denied service connection for difficulty swallowing in the April 2006 rating decision. However, in a November 2007 rating decision, the AOJ granted service connection for dysphagia and assigned a noncompensable evaluation effective October 1, 2005. This was a full grant of the benefit sought, and the Veteran did not appeal from the downstream issues of the disability rating or effective date assigned. As such, they are not on appeal. As also noted previously, in her April 2007 VA Form 9, the Veteran initially requested a hearing at the local VA office before a member of the Board. She later clarified that she wanted a local hearing in Waco. A September 2007 Informal Conference Report then noted her desire for a VA examination in lieu of a formal hearing. The Veteran was also scheduled for a Board hearing at the RO in July 2012, but she did not appear. To the Board's knowledge, she has not provided a reason for not reporting and has not requested another hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to a higher rating for the orthopedic manifestations of the neck disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action is required on her behalf. FINDINGS OF FACT Throughout the appeal, the Veteran's left upper extremity radiculopathy has manifested by severe pain and mild organic changes along the C6 distribution, including decreased sensation down the arm and into the hand and fingers, intermittent weakness and decreased strength, and intermittent decreased or increased reflexes, approximating no more than moderate incomplete paralysis, neuritis, or neuralgia of the upper radicular group (5th and 6th cervical nerves). CONCLUSION OF LAW The criteria to warrant a disability rating of 30 percent, but no higher, for left upper extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8710 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of the information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status, (2) existence of a disability, (3) connection between the veteran's service and the disability, (3) degree of disability, and (4) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Complete VCAA notice should be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). However, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's claim for a higher initial rating for left upper extremity radiculopathy arises from his disagreement with the initial evaluation assigned following the grant of service connection for such disability. She was advised of the criteria to establish service connection in a November 2005 letter, prior to the unfavorable rating decision that assigned a 10 percent initial rating. She was subsequently advised of the criteria to establish a disability rating and effective date, as well as the applicable rating criteria, such as in the August 2006 statement of the case. The timing defect of this notice was cured by the subsequent readjudication of the claim, including in a February 2013 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Further, there is no allegation of any prejudice due to any possible notice defects pertaining to the downstream element of the disability rating. Therefore, no additional VCAA notice is required. With regard to the duty to assist, the Veteran's service treatment records and identified post-service treatment records have been obtained and considered. This includes VA treatment records dated through September 2008, as contained in her Virtual VA paperless file (a highly secured electronic storage system). There is no indication that she receives benefits from the Social Security Administration. As directed in the prior remand, in November 2012, the AOJ requested the Veteran to identify any outstanding records and complete an authorization form for VA to obtain non-VA records, to include records from Scott & White dated since December 2006. She did not respond to this request. VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, this directive was substantially completed, and VA has satisfied its duty to assist in this regard. The Veteran was also afforded VA examinations in connection with her claim, most recently in January 2013, as directed in the prior Board remand. The examiner measured and recorded all subjective and objective neurological symptomatology, and offered an opinion as to the degree of the severity of the disability. There is no argument or indication that this examination is inadequate in this respect, or that the Veteran's disability has increased in severity since that time. As such, the evidence is sufficient to establish the current severity of the left upper extremity disability. In the circumstances of this case, another remand as to the issue decided herein would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties 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 proceedings. As such, the Veteran will not be prejudiced by a decision on this claim. II. Analysis 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Under 38 C.F.R. § 4.124a, diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. at Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Here, the Veteran's left upper extremity radiculopathy is currently assigned a 10 percent rating for the period prior to January 8, 2013, under Diagnostic Code (DC) 8599-8515, for an unlisted condition as analogous to mild incomplete paralysis of the median nerve. 38 C.F.R. §§ 4.27 (concerning the building up of diagnostic codes for unlisted conditions), 4.124a (providing ratings for the peripheral nerves). For the period from January 8, 2013, forward, the Veteran is currently assigned a 30 percent rating under DC 8710, for moderate neuralgia of the upper radicular group (5th and 6th cervical nerves). See 38 C.F.R. §§ 4.123, 4.124, 4.124a, DC 8510. The Board first finds that the Veteran's left upper extremity radiculopathy is more appropriately rated under DC 8710 (under the criteria set forth in DC 8510), which relates to the upper radicular group or 5th and 6th cervical nerves, for the entire period on appeal. This is because the medical evidence clearly reflects that the affected nerve has been the C5/C6 upper radicular group, with symptomatology along the C6 distribution since a 2005 surgery. See, e.g., October 2005 and November 2005 records from Scott & White; December 2005 and January 2013 VA examination reports; February 2008 VA treatment record (in Virtual VA). Although there are some symptoms in the hand and fingers, which may be due to the median nerve as indicated in DC 8515, there is no evidence of involvement of the median nerve in this Veteran's case. See 38 C.F.R. § 4.124a. Moreover, higher ratings are available under DC 8510 for the upper radicular group. See id. The evidence reflects that the Veteran is right-hand dominant. See, e.g., December 2005 and October 2007 VA examination reports. As such, the ratings for the minor side are for consideration for her left upper extremity disability. For the minor side, a 60 percent rating will be assigned where there is complete paralysis of the upper radicular group (5th and 6th cervical nerves), with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. A 40 percent rating is warranted where there is severe incomplete paralysis of the upper radicular group. A 30 percent rating is warranted for moderate incomplete paralysis. A 20 percent rating is warranted for mild incomplete paralysis of the upper radicular group. 38 C.F.R. § 4.124a, DC 8510. Neuritis and neuralgia of the upper radicular group (5th and 6th cervical nerves) are rated using these criteria under DCs 8610 and 8710, respectively. Here, the Veteran has complained of pain in the C6 distribution and some weakness and sensory changes in the left arm throughout the appeal. See, e.g., May 2006 notice of disagreement, hand-written notation on May 2004 MRI from Scott & White. The medical evidence also shows fairly consistent symptoms. See, e.g., October 2005, November 2005, and March 2006 Scott & White treatment records; February, May, and September 2008 VA treatment records; December 2005, October 2007, and January 2013 VA examination reports. Specifically, the Veteran has had pain in the left shoulder and down the left arm into the hand and fingers in a fairly consistent C6 distribution as her major problem. She has reported constant pain at a level of 3 to 5 out of 10, with flare-ups to 7 or 8 after working or activity, as well as a feeling of fatigue or heaviness after repetitive use. The January 2013 VA examiner noted that the Veteran's pain was severe and constant and could be excruciating at times. She reported that the distribution of pain had not changed, and it had improved but was still severe. The Veteran has also reported intermittent numbness and a pins-and-needles sensation, and there is objective evidence of sensory impairment. An October 2005 private treatment record reflects decreased sensation in the C6 distribution. During the December 2005 VA examination, there was sensory deficit of the left lateral forearm, thumb, and index finger. During the October 2007 VA examination, sensation was decreased to soft touch and sharp and dull discrimination below the wrist on the left. A February 2008 VA treatment record also notes sensory impairment with left C6 radiculopathy. During the January 2013 VA examination, the Veteran reported no new additional symptoms, and stated that her skin was sensitive to touch. Sensation was decreased to light touch, and she was noted to have moderate paresthesias/dysesthesias and numbness. There is also objective evidence of intermittent decreased strength and weakness. In an October 2005 private treatment session, motor strength was 4/5 in the left deltoid and biceps, but otherwise excellent throughout, and the Veteran reported "fairly mild" weakness. In a November 2005 private record, motor testing showed "a touch of weakness" at 4+ out of 5 in the left shoulder, but otherwise normal strength, and there was "maybe a little bit of wasting" of the left shoulder. During the December 2005 VA examination, left hand strength was within normal limits. A March 2006 private record again notes that the Veteran had "just a little bit of weakness" in the left shoulder, with otherwise good strength. During the October 2007 VA examination, there was no atrophy, and muscle strength was 5/5. Strength was again found to be 5/5 in a February 2008 VA treatment record, although the Veteran was noted to have left C6 radiculopathy with weakness. During the January 2013 VA examination, strength was 5/5 and there was no muscle atrophy. In addition, there is evidence of impaired reflexes in the left arm throughout the appeal. An October 2005 private record noted that reflexes were decreased in comparison to the right at the left biceps, but otherwise equal. During the October 2007 VA examination, deep tendon reflexes were 2+ (or normal). At the January 2013 VA examination, the Veteran had deep tendon reflexes of 3+, or hyperactive without clonus in all tested groups (the biceps, triceps, and brachioradialis). With regard to overall impairment due to the left upper extremity radiculopathy, the October 2007 VA examiner summarized that there was "significant effect" and "moderate" degree of disability with regard to the Veteran's work due to pain and flare-ups of pain. The examiner also stated that there was moderate radiculopathy of the left upper extremity. The January 2013 VA examiner indicated that the Veteran's main problem was pain, and she had no new additional symptoms or change in pain distribution. As noted above, her pain had improved but was still severe. The Veteran reported that the pain was increasingly interfering with work and she had to reduce her hours. The examiner indicated that it was severe. Considering all evidence of record, the Board finds that the manifestations of the Veteran's left upper extremity radiculopathy have mostly nearly approximated moderate incomplete paralysis of the upper radicular group throughout the period on appeal. As discussed above, she has had constant, severe radicular pain ranging from 3-5 during resting times to 7-8 out of 10 during flare-ups. There is also objective evidence of organic changes including fairly consistent decreased sensation down the arm and into the hand and fingers along the C6 distribution, intermittent weakness and decreased strength, intermittent decreased or increased reflexes. However, these organic changes were all mild in degree, as summarized above. Although possible mild wasting was noted on one occasion in 2005, there was no indication of atrophy at any other time. Additionally, VA examiners generally described the Veteran's level of disability and functional impairment as moderate, including with significant effects on her occupation. The Board agrees with this characterization based on the symptoms as a whole. As such, the Veteran is entitled to a 30 percent rating under DC 8510 or 8710 for moderate incomplete paralysis (or neuralgia) of the upper radicular group, affecting the C5 and C6 cervical nerves. Although the Veteran has had severe pain, the Board finds that her other symptomatology has been intermittent and mild in degree. As such, her disability does not most nearly approximate the next higher rating of 40 percent for severe incomplete paralysis. See 38 C.F.R. §§ 4.7, 4.124a. The Board notes that the criteria for complete paralysis of the upper radicular group indicates that hand and wrist movements are not affected. See 38 C.F.R. § 4.124a, DC 8510. The evidence does not reflect decreased range of motion of the left hand or wrist, although the Veteran has had some pain and sensory impairment in the left hand and fingers. As such, the Board has considered whether a separate or higher rating would be warranted under another diagnostic code. For example, DC 8511 contemplates extension of the wrist, DC 8512 pertains to the intrinsic muscles of the hand and flexors of the wrist and fingers, and DC 8513 provides for a rating where all radicular groups are affected. See 38 C.F.R. § 4.124a. However, each of these codes also provides for a rating of 30 percent for moderate degree of incomplete paralysis (or neuralgia or neuritis) of the minor arm; thus, a higher rating would not be warranted. Id. Further, assigning a separate rating under one of those codes in addition to the rating under DC 8510 would result in double compensation for most of the Veteran's symptoms. This would be impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, the Veteran's disability is most appropriately rated under DC 8510 (or 8710). All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Although the AOJ assigned staged ratings, the Board finds that the Veteran has had a relatively stable level of symptomatology in the left upper extremity throughout the appeal, and a higher rating has been assigned for the earlier period. No further staging is warranted, as any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Fenderson, 12 Vet. App. at 126-27. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's left upper extremity radiculopathy are fully contemplated by the schedular rating criteria. Briefly, the Veteran complained of pain, weakness, and sensory impairment, which were objectively shown to the degrees discussed above. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate her disability picture. Moreover, there are no related factors such as marked interference with employment or frequent periods of hospitalization. The Veteran has continued to work, and the rating assigned herein accounts for considerable interference or loss of working time. See 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. Although the Veteran's disability affects her ability to work, there is no indication that she has been unemployed at any point during the appeal. As such, a claim for a TDIU is not raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A higher rating of 30 percent for the period prior to January 8, 2013, has been granted based, in part, on the benefit-of-the-doubt rule. However, the preponderance of the evidence is against a higher rating at any point during the appeal. As such, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim must be denied in this respect. 38 C.F.R. § 4.3. ORDER An initial rating of 30 percent, but no higher, for left upper extremity radiculopathy is granted for the period prior to January 8, 2013. A rating in excess of 30 percent for left upper extremity radiculopathy for the period from January 8, 2013, forward, is denied. REMAND Further development is necessary for a fair adjudication of the claim for a higher rating for the orthopedic manifestations of the Veteran's cervical fusion, or neck disability. Specifically, the January 2013 VA examination report contains conflicting statements as to the effects of repetitive movement and/or flare-ups. The VA examiner recorded range of motion of the cervical spine including initial forward flexion to 40 degrees, with painful motion beginning at 20 degrees; and forward flexion after three repetitions to 40 degrees. Although this appears to indicate no change in range of motion after repetitive use, the VA examiner then checked "yes" for whether the Veteran had additional limitation in range of motion of the cervical spine after repetitive-use testing, and functional loss and/or functional impairment of the cervical spine. The examiner specified that these were due to less movement than normal, weakened movement, and pain on movement. The Veteran had forward flexion of the cervical spine to 25 degrees at the October 2007 VA examination, and to 40 degrees (with pain beginning at 20 degrees) at the January 2013 examination. She also reported flare-ups with worsening pain and during both examinations, although the October 2007 examiner stated that there was no additional limitation or functional loss after repetitive motion. Under these circumstances, it is unclear whether the Veteran had forward flexion of the cervical spine limited to 15 degrees or less at any point when considering functional loss during flare-ups or after repetitive use due to pain and other factors, as required for the next higher rating of 40 percent. See 38 C.F.R. § 4.71a, DC 5241, General Rating Formula for Disease and Injuries of the Spine. As such, the case must be remanded for a clarifying opinion in this respect. The Board notes that pain alone does not constitute functional loss, and painful motion alone does not constitute limited motion for these purposes. However, pain may result in functional loss. Therefore, the examiner should express any additional functional impairment due to pain or other factors in terms of degrees, to the extent possible. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the case is REMANDED for the following action: 1. Return the claims file, including a copy of this remand and access to any relevant records in Virtual VA, to the January 2013 VA spine examiner for an addendum report. (Only if that examiner is no longer available, or a full examination is otherwise deemed necessary, then the Veteran should be scheduled for a new VA examination.) Review of the claims file should be noted in the addendum report. The examiner should respond to the following: (a) Please note that the January 2013 report reflects initial forward flexion of the cervical spine to 40 degrees, with pain beginning at 20 degrees; and forward flexion after three repetitions to 40 degrees (or no change). However, the box for "yes" is checked as to whether there was additional limitation in range of motion of the cervical spine after repetitive-use testing, and functional loss and/or functional impairment of the cervical spine, indicated as due to less movement than normal, weakened movement, and pain on movement. (b) Therefore, please clarify whether the Veteran has additional functional impairment of the cervical spine during flare-ups or after repetitive use due to pain or other factors. Please note, pain alone does not constitute functional loss, and painful motion alone does not constitute limited motion for these purposes, but pain may result in functional loss. (c) Also, to the extent possible, express any additional limitation or functional loss in terms of degrees. In particular, is it at least as likely as not (probability of 50 percent or more) that there is forward flexion of the cervical spine to 15 degrees or less during flare-ups or after repetitive use? If an opinion cannot be given without resorting to speculation, indicate why and what, if any, further information is needed. 2. The AOJ should review the report to ensure that it contains the information and opinion(s) requested in this remand, and is otherwise complete, and request clarification from the examiner as necessary. 3. If the appeal is not fully granted, issue a supplemental statement of the case before the case is returned to the Board for further review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs