Citation Nr: 1321989 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-05 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent for fibromyalgia with intermittent quadriceps muscle cramps, including the question of a separate evaluation for the muscle cramps. 2. Entitlement to an initial compensable evaluation for headaches. 3. Entitlement to a separate evaluation for thoracic outlet syndrome, as distinct from service-connected degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the January 2009 rating decision decided other claims, the Veteran's claims remaining on appeal are listed above. The increased rating claims on appeal pertain to the initial level of compensation assigned immediately following grants of service connection. Fenderson v. West, 12 Vet. App. 119 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). A May 2010 hearing was held at the RO before a Decision Review Officer (DRO). The Veteran testified during a January 2013 hearing before the undersigned Veterans Law Judge (VLJ) at the Board's Central Office in Washington, D.C. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) required that the VLJ who chairs a hearing ensures that the claimant understands the issues present and suggests the submission of evidence that may have been overlooked. During the hearing, the VLJ engaged in a colloquy with the Veteran and the representative as to the central issues of evaluation of the claims including whether medical professionals had expressed relevant opinions and whether there was a factual or medical basis for separate evaluation of the thoracic and cervical spine disorders. The Board is deciding the issue of separate compensation for thoracic outlet syndrome. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence does not establish demonstrable neurological impairment or other compensable impairment due to thoracic outlet syndrome. CONCLUSION OF LAW The criteria to establish a separate evaluation for thoracic outlet syndrome, as distinct from service-connected degenerative disc disease of the cervical spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8510 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the development of a claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2012). In regard to the claim on appeal for higher initial evaluation for service-connected thoracic outlet syndrome associated with degenerative disc disease of the cervical spine, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The claim of service connection for thoracic outlet syndrome already has been substantiated, and no further notice addressing the "downstream" disability rating requirement is necessary. The RO has complied with the duty to assist the Veteran through obtaining VA outpatient treatment records. The Veteran has undergone VA Compensation and Pension examinations, most recently in September 2011. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The Veteran also provided copies of extensive medical records from military treatment providers. He has testified at DRO and Board hearings. There is no indication of any further available evidence. The record includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of his disability. In Fenderson, the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. As here, in the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, at 125-26. Degenerative disc disease of the cervical spine, with thoracic outlet syndrome, has been evaluated at 10 percent disabling effective July 12, 2008, and at 30 percent since August 30, 2010. The Veteran is requesting a separate compensable evaluation for thoracic outlet syndrome, while not continuing the appeal as to the remaining evaluation for the cervical spine disorder. The Board is considering a separate evaluation for thoracic outlet syndrome to the extent involving symptomatology non-overlapping with that already reflected in the award of compensation for cervical spine degenerative disc disease. See 38 C.F.R. § 4.14 (providing that as to assignment of separate ratings, under VA's "anti-pyramiding rule," the evaluation of the same manifestation under different diagnoses is to be avoided). See also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The underlying cervical spine disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 based on limitation of motion. Thoracic outlet syndrome is a neurovascular condition distinct from intervertebral disease. There remains for evaluation whether there is additional neurological impairment due to the associated thoracic outlet syndrome. Generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis" where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8510 apply to the evaluation of the upper radicular group. Under that diagnostic code, complete paralysis of the nerve is defined as where all shoulder and elbow movements are lost or severely affected, and hand and wrist movements are not affected. Complete paralysis of the nerve warrants a 70 percent rating where involving a major extremity, and a 60 percent rating for a minor extremity. Severe incomplete paralysis warrants a 50 percent rating for a major extremity, and 40 percent rating for a minor extremity. Moderate incomplete paralysis corresponds to a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. Mild incomplete paralysis warrants a 20 percent rating in either extremity. Thoracic outlet syndrome is known as a "neurovascular syndrome resulting from compression of the subclavian artery, the brachial plexus nerve trunks, or less of the axillar vein or subclavian vein, by thoracic outlet abnormalities such as a drooping shoulder girdle, a cervical rib or fibrous band, an abnormal first rib, or occasionally compression of the edge of the scalenus anterior muscle. ...Arterial compression leads to ischemia, paresthesias, numbness, and weakness of the affected arm, sometimes with Raynaud's phenomenon of the arm. Nerve compression causes atrophy and weakness of the muscles of the hand and, in advanced cases, of the forearm, with pain and sensory disturbances in the arm." See Dorland's Illustrated Medical Dictionary (30th Ed.), at 1834 (2003)). A November 2009 VA Compensation and Pension examination, primarily for a thyroid disorder, indicated in part, there were no signs of carpal tunnel syndrome, or sympathetic nervous system signs. Muscle strength was 5/5 in both arms. Deep tendon strength was in the triceps 0 on the right, 1+ on the left; in the biceps 2+ on both sides; in the brachioradalis 1+ on both sides. Records of post-service treatment at a military medical facility include a June 2010 assessment of cervicalgia. Contemporaneous records refer to either cervicalgia, or a more generalized chronic pain condition. Upon a comprehensive evaluation of September 2010, the Veteran reported that in the previous two years there had been no change in his symptoms pertaining to his neck, back, and bilateral shoulder and arm pain. He noted recent evaluation by a vascular surgery clinic which found that no surgical intervention was warranted as to thoracic outlet syndrome. He complained of symptoms and pain and distribution discoloration after prolonged raising of his arms above shoulder level. On physical examination of the cervical spine, no skin changes were appreciated and there were no lesions. He had a short neck presentation. On palpation he complained of a lot of guarding with light touch along the muscles and spinous process. The examiner noted that the Veteran complained of pain out of proportion to the objective exam. Muscle group tests in the upper extremities were 5/5. Sensory exam was intact with light touch and pinprick even though he complained of pain during the entire examination. Reflexes (biceps, triceps, brachioradialis) were 2+ bilaterally and symmetrically. On normal sitting position with the arms down pulses were present bilaterally. There was diminished pulse with the arms raised above shoulder level with a positive Adson test bilaterally. He complained of pain with the axial loading of his cervical spine with pain in the neck and back. The shoulder exam showed full range of motion and was essentially normal. According to the examiner, evaluation of the cervical spine, shoulders, and clavicles were essentially normal despite a 5/8 Waddell sign presentation. The neck, back and thoracic outlet syndrome were all considered stable. On VA examination of the spine in September 2011, the Veteran reported symptoms of cervical spine stiffness, spasms, decreased motion and numbness. He did not experience fatigue, paresthesia, and weakness. He did not report any associated bowel or bladder problems. He described pain occurring constantly in the neck, shoulders and upper back, moderate in level, and exacerbated by physical activity, stress and extended inactivity. On some days he felt he could not function even with the use of pain relief medication. During flare-ups he experienced functional impairment which was described as pain, lack of circulation when the arms were elevated over 90 degrees, limitation of motion of the neck, and compression of arm nerves and blood flow past 90 degrees arm elevation. The treatment was physical therapy six weeks, TENS unit, and pain medications and injections. He stated he was never hospitalized nor had any surgery for the condition in question. He stated his condition in the previous 12 months had not resulted in any incapacitation. On objective examination of the cervical spine, there was no evidence of radiating pain on movement, muscle spasm, weakness, loss of tone and atrophy of the limbs. There was tenderness on palpation of the cervical spine. There was evidence of guarding. There was no joint ankylosis. Range of motion was forward flexion 10 degrees, limited by pain to 5 degrees; extension to 5 degrees; right and left lateral flexion to 5 degrees; and right and left rotation 5 degrees. Join function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Neurological evaluation of the cervical spine revealed no sensory deficits from C3-C8. There was no motor weakness. The right and left upper extremity reflexes revealed biceps and triceps jerk 2+. The upper extremities showed no signs of pathologic reflexes. There were normal cutaneous reflexes. There were no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. There was present slightly decreased/absent radial, brachial pulse with raising arms above the head. There was some associated numbness in the arms when raised above the head, and this along with cervical and lumbar pain with decreased range of motion made the Veteran's occupation as an IT systems analyst difficult. The symptomatology attributable to thoracic outlet syndrome is not a compensable level of impairment. A thorough review of the record indicates presentation of this condition that is relatively stable, and absent neurological dysfunction or other identifiable disability. The November 2009 VA examination did not reveal neurological deficit of the upper extremities or cervical spine region. Records of post-service treatment at a military medical facility did observe cervicalgia (neck pain), but otherwise following typical sensory and motor evaluations, the Veteran was indicated to have a normal cervical spine, shoulders, and clavicles. Significantly, and as observed by the examiner, the Veteran's complaints may have been out of proportion to the exam. Again, this is only one evaluator's viewpoint, and cervicalgia is not summarily discounted. However, aside from pain, the Veteran is not shown to have characteristic neurological limitations, including paresthesia, loss of strength, severe diminished reflexes, sensory disturbances, or loss of coordination. The September 2011 VA examination yielded again at or near normal neurological findings. Notably, the Veteran did appear to have some numbness and diminished pulse when raising his hands above his head, potentially due to more vascular complications of thoracic outlet syndrome. However, the level of symptomatology appears to be very minimal, particularly given the contemporaneous finding that the Veteran did not experience fatigue or weakness, as well as objective determination of no sensory deficit. To the extent that the Veteran may have some vascular oriented symptoms, this is best considered under the Diagnostic Code 8510 for impairment of the upper radicular nerve group, particularly as there is no analogous provision when involving the upper extremities under the rating criteria for peripheral vascular conditions. See 38 C.F.R. § 4.27 (pertaining to rating unlisted conditions by analogy under the VA rating schedule). The diminished pulse signs upon raising his arms alone, while observed recently, does not substantiate actual functional impairment, as the rating schedule recognizes. See again, 38 C.F.R. § 4.1. Nor is there any other better suited source of rating criteria than that of neurological impairment, given the type of disability in question (i.e., radiating symptoms from neurovascular compression). As a result, a separate compensable rating is not warranted. The service-connected thoracic outlet syndrome may have a different etiology and/or symptomatology from degenerative disc disease of the cervical spine. However, there is no indication of substantial associated ratable symptomatology. The potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, 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 extraschedular rating. The Veteran's thoracic outlet syndrome does not present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon neurological impairment fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. The applicable rating criteria considers pain on use, and potential sensory disturbance, motor disturbances and impairment of reflexes. The Veteran's disorder does not present an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for a separate compensable evaluation for thoracic outlet syndrome. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER The criteria are not met for assignment of a separate evaluation for thoracic outlet syndrome, associated with degenerative disc disease of the cervical spine. REMAND With regard to the claims for increased evaluation for fibromyalgia and headaches, the Veteran last underwent relevant VA examination in August 2008, and a more contemporaneous examination is required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The requested examination as to the current severity of fibromyalgia should also resolve the question of whether the Veteran has any service-connected impairment from muscle cramps of the bilateral lower extremities that is distinct from the underlying fibromyalgia. Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA neurological examination to ascertain the current severity of his fibromyalgia and headaches. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. The VA examiner should initially indicate all present symptoms and manifestations attributable to fibromyalgia in accordance with the applicable rating criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5025. The examiner should further indicate an opinion as to whether the Veteran's muscle cramps of the bilateral lower extremities (primarily in the quadriceps regions) constitute a distinct disability from fibromyalgia, and if this is the case, please further indicate the severity of the muscle impairment in accordance with the criteria for muscle injury, under 38 C.F.R. § 4.73 (Diagnostic Code(s) 5313 and/or 5314). The VA examiner should further indicate all present symptoms and manifestations attributable to headaches in accordance with the applicable rating criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The RO/AMC must then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC must readjudicate the claims for increased initial ratings for fibromyalgia (including a separate rating for muscle cramps) and for headaches, in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs