Citation Nr: 1324971	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  05-32 905A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for status post anterior discectomy and fusion of C3-4, cervical spondylosis with slim lock plate diagnosed as cervical disc herniation C2-3 and C5-6 with left upper extremity neuropathy (hereinafter cervical spine disability) prior to October 17, 2003 and since February 2, 2004.

2.  Entitlement an evaluation in excess of 10 percent for right shoulder tendonitis, status post arthroscopy with debridement and Mumford procedure (hereinafter right shoulder disability) prior to March 30, 2004, from May 1, 2004 to October 31, 2007, in excess of 20 percent from November 1, 2007, to January 17, 2008 and from March 1, 2008 to August 11, 2008, and in excess of 10 percent since August 12, 2008.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from November 1989 to February 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran timely appealed the above increased evaluation claims.  The Board gave a detailed historical recitation in its previous May 2012 remand order, and that is incorporated by reference at this time.

As previously noted, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2008; a transcript of that hearing is associated with the claims file.

This case was last before the Board in May 2012, when it was remanded for further development with regards to the right shoulder and cervical spine issues.  That requested development having been completed, the case has been returned to the Board for further appellate review at this time.  

Unfortunately, the increased evaluation claim for the right shoulder is addressed in the REMAND portion of the decision below and is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  Prior to October 17, 2003, the evidence of record demonstrates that the Veteran's cervical spine disability has forward flexion in excess of 30 degrees, a combined range of motion of the cervical spine in excess of 170 degrees-described during the appeal period as a "mild limitation of motion"-and does not have muscle guarding or spasming severe enough to result in abnormal gait or spinal contour, and there is no evidence of incapacitating episodes or physician-prescribed bedrest.

2.  For the period beginning February 2, 2004, the Veteran's cervical spine combined range of motion is less than 170 degrees, but does not demonstrate 15 degrees or less of cervical spine flexion, evidence of ankylosis-either favorable or unfavorable-incapacitating episodes or physician-prescribed bedrest.

3.  The Veteran's left upper extremity neuropathy associated with his cervical spine disability is demonstrable of mild incomplete paralysis of the upper radicular (fifth and sixth cervicals) nerves, beginning May 23, 2003.


CONCLUSIONS OF LAW

1.  The criteria establishing an evaluation in excess of 10 percent for the Veteran's cervical spine disability, for the period prior to October 17, 2003, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2012).

2.  The criteria establishing a 20 percent evaluation, but no higher, for the Veteran's cervical spine disability, beginning February 2, 2004, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2012).


3.  The criteria establishing a separate 20 percent evaluation for left upper extremity neuropathy associated with the cervical spine disability, beginning May 23, 2003, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.400(o), 4.7, 4.124a, Diagnostic Codes 8510 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, 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, 1277 (2009).

Here, the Veteran was sent letters in June 2004 and October 2006 that provided information as to what evidence was required to substantiate the claim for increased evaluation of his cervical spine disability and of the division of responsibilities between VA and a claimant in developing an appeal.  

The Board acknowledges that, in the present case, complete notice with respect to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), particularly the parts regarding how VA determines disability ratings and effective dates, was not issued prior to the adverse determination on appeal.  To this date, such notice has yet to be sent to the Veteran.  

Except in cases where VA has failed to inform the appellant of the information and evidence necessary to substantiate the claim, determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

In the present case, the notice error at issue does not affect the essential fairness of the adjudication.  Indeed, from the aggregate of the communications provided to the Veteran, a reasonable person should have been able to understand what evidence was necessary to substantiate the claim.  Furthermore, he was afforded the opportunity to present testimony in support of his claim.  Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim.  Overton v. Nicholson, 20 Vet. App. 427 (2006).  

For all of these reasons, it is determined that the appellant had a meaningful opportunity to participate effectively in the processing of the claim.  Therefore, the notice deficiency here constitutes harmless error and does not unfairly prejudice the Veteran.  Thus, no additional development is required with respect to the duty to notify.  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at an April 2008 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided.  

The Board notes that the Veteran's claim was last subject to a May 2012 remand order, which instructed that the Veteran's VA treatment records be obtained and that a VA examination be performed.  The Veteran's most recent VA treatment records were obtained and associated with the claims file, and he underwent a VA examination of his cervical spine disability in July 2012.  Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case.  See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Id.; Powell v. West, 13 Vet. App. 31, 35 (1999).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2012).

The Veteran is currently rated at 10 percent for his cervical spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5293-5241.  Under that diagnostic code, a cervical spine disability should be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.

As way of background, the Veteran underwent cervical spine spinal fusion on October 17, 2003.  In light of this procedure, the Veteran has been assigned a temporary total evaluation for the necessity of convalescence from October 17, 2003 to February 1, 2004.  Prior to the Veteran's October 17, 2003 surgery, he was assigned a 10 percent evaluation, and beginning February 2, 2004, the temporary total evaluation expired and he was again reassessed a 10 percent evaluation for his cervical spine disability.

The Board additionally notes that service connection for the Veteran's cervical spine disability was granted in a May 2003 rating decision.  The Veteran filed his claim for increased evaluation in November 2003.  In October 2003, however, the Veteran made VA aware of his cervical spine surgery and requested a temporary total evaluation for his cervical spine evaluation.  Regardless of the Veteran's date of claim being October 2003 or November 2003, under 38 C.F.R. § 3.400(o), VA has a duty to assess whether any treatment within the year prior to the filing of the claim demonstrates an increased evaluation.

However, in light of the fact that the Veteran did not file a notice of disagreement with the May 2003 rating decision, but instead scheduled an October 2003 surgery and then a claim for increased evaluation, the Board finds that the relevant rating period on appeal begins the date following the now-final May 2003 rating decision.  Accordingly, the Board will only assess the Veteran's cervical spine disability from May 23, 2003 through the present, excluding the period from October 17, 2003 to February 1, 2004, during which the Veteran has been assigned a temporary total evaluation for that disability due to convalescence following his spinal fusion procedure.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 1 week, but less than 2 weeks, during the past 12 months; a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012).

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

With regards to the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; when the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; when muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine (2012).

A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  See Id.

A 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less, or when there is favorable ankylosis of the entire cervical spine.  See Id.  

A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine and a rating in excess of 40 percent is not available unless either ankylosis of the entire spine is present.  See Id.

Period from May 23, 2003 to October 16, 2003

In the May 2003 rating decision, it was noted that the Veteran's VA examination noted some numbness and tingling along the left upper extremity.  He had a good range of motion of the neck with flexion to 45 degrees, extension to 40 degrees, with normal bilateral rotation to 55 degrees, and slightly-reduced bilateral lateral flexion to 30 degrees.  

VA treatment records from July 2003 noted that the Veteran had neck pain that radiated to his left upper extremity, from distal to his elbow for approximately 6 years.  He had 6 out of 10 pain at that time.  On examination, the Veteran has normal motor strength with pinprick sensation intact.  He did not have any Hoffman's or Babinsky's.  It was noted, however, that the images noted cervical stenosis with loss of normal lordosis, a herniated nucleus pulposus at the C3-4 central and C5-6 hard vs. soft disc.  

In a September 2003 treatment record, the Veteran was noted as having persistent neck discomfort.  On examination he had some generalized tenderness about his neck without any involuntary spasms.  He had "mild limitation of motion" though the exact loss of range of motion was not noted at that time.  His motor function was grossly intact.  He was diagnosed with degenerative cervical disc disease with radiculopathy.

In an October 2003 presurgical note, the Veteran reported intermittent numbness sensation over the cape area of his neck; he reported right shoulder pain, denied left shoulder pain, and also denied any distal symptoms in the humerii, forearms or hands bilaterally.  It was noted that his left arm symptoms had resolved completely.  The examiner noted that there was no myelopathy.  

Finally, in October 2003, the Veteran also underwent a physical examination.  At that time he reported pain in his neck which went across both shoulders.  He reported transient numbness in both of his biceps, without any specific weakness or numbness in his hands, however.  A March 2003 Magnetic Resonating Imaging (MRI) scan was noted as showing the loss of cervical lordosis, a right-sided C3-4 herniated disc, and a left-sided C5-6 herniated disc.  He reported some neck stiffness at that time.  The examiner diagnosed the Veteran with cervical stenosis, though no range of motion testing was done at that time.

Throughout those treatment records, the Veteran's gait was noted as being normal.

For the period prior to October 17, 2003, the Board finds that an increased evaluation is not warranted.  Initially, the Board notes that there is no mention of, or evidence of-medical or lay-physician-prescribed bedrest for the Veteran associated or due to his cervical spine disability.  Thus, the Board finds that there is no evidence of any incapacitating episodes and therefore Diagnostic Code 5243 is not applicable in this case.  

Turning to the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that there is no specific range of motion testing performed on the Veteran's cervical spine during the applicable appeal period under review.  At best, the Board notes that there was a finding of "mild limitation of motion," in July 2003, though no specific ranges of motion were obtained at that time.  

The Board does note that the VA examination discussed in the May 2003 rating decision does have range of motion testing, and that those numbers, which were correctly transcribed from March 2003 VA examination, do not reflect the criteria appropriate for a higher evaluation.  The Veteran's cervical spine flexion was in excess than 30 degrees and his combined range of motion for his cervical spine was in excess of 170 degrees.  Thus, based on those ranges of motion and the finding of a generalized "mild limitation of motion," the Board finds that the specific range of motion criteria necessary for an increased evaluation has not been demonstrated for the period prior to October 17, 2003.  

Moreover, the Board notes the lack of any abnormal gait throughout the appeal period.  Also, while there is evidence of a loss of cervical lordosis during that time period, such loss of lordosis is not specifically noted as being "reversed lordosis" as noted by the Rating Schedule, nor is there any evidence that such a loss of lordosis is accompanied by or the result of muscle guarding or spasming of the cervical spine.  The Board notes that there is no evidence of any muscle guarding or spasming of the neck for the appeal period prior to October 17, 2003, and in fact, the September 2003 treatment record reflects grossly intact motor function and notes the specific lack of involuntary spasming at that time.

In light of the above evidence, the Board finds that evidence of record does not demonstrate the criteria necessary for a higher evaluation than the currently-assigned 10 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in this case.  Accordingly, the Board finds that the Veteran's claim for an increased evaluation prior to October 17, 2003 for his cervical spine disability must be denied at this time.  See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243.  

Period following February 1, 2004

For the period beginning February 2, 2004, VA treatment records demonstrate that the Veteran continued to demonstrate soreness, tenderness and pain in his neck throughout the appeal period.  However, the Board notes that range of motion was described as "good," or "ok" in those records without any actual ranges of motion reported.  For example, in a January 2006 VA treatment record, notes that the Veteran had a tender neck, but no spasms.  His range of motion was "ok," and his motor function was intact.  He was noted as having degenerative disc disease of the cervical spine, post fusion.

In November 2006, the Veteran underwent a VA cervical spine examination.  At that time, the Veteran reported neck pain and was treated with Prioxicam with good response.  There were no incapacitating episodes in the last 12 months reported at that time.  It was noted that he had a spinal fusion in 2003.  There was no evidence or history of urinary incontinence, urinary urgency, urinary retention requiring catherization, nocuria, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction or dizziness.  The Veteran endorsed decreased motion, stiffness, spasms and pain, but denied any fatigue or weakness in his neck.  His pain was reported to be with activity and it was a deep pinch-type pain, moderate in severity, and which lasted minutes.  The pain radiated to his bilateral shoulders.  He also described weekly flare-ups which were severe in nature and lasted hours; he reported that he had increased pain and decreased motion during flare-ups.  

On examination, the examiner noted that the Veteran did not have intervertebral disc syndrome (IVDS) at that time.  He did not have any limitations with walking and did not use any ambulatory aids or devices.  There was no evidence of spasming, guarding, atrophy, pain with motion, tenderness or weakness bilaterally.  The examiner specifically stated that there was no evidence of muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour.  The examiner noted that the Veteran had normal gait, posture and head position.  There was symmetry in appearance.  There was no evidence of gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis or reverse lordosis.  Muscle testing on his bilateral upper extremities was normal, without evidence of atrophy; he had normal muscle tone.  The Veteran also had normal sensory and reflex tests as well.  

The examiner noted that there was no cervical spine ankylosis.  The Veteran had flexion of the cervical spine to 40 degrees, though pain began at 35 degrees.  He had extension to 45 degrees, with pain beginning at 40 degrees.  He had lateral flexion to 20 degrees with pain beginning at 15 degrees, as well as lateral rotation to 20 degrees without any pain.  There was no additional loss of range of motion on repetitive testing shown at that time.  X-rays from that time noted the spinal fusion changes and noted that there was no change since the previous x-ray studies.  The examiner noted that the Veteran was mildly impaired in his ability to do chores and shopping and moderately impaired in his ability to exercise, sports, traveling and recreation as a result of his neck disability.  

In August 2008, the Veteran underwent another VA examination of his cervical spine disability.  The Veteran reported continued pain, which had now begun to radiate into his upper thoracic area without any additional mechanism of injury.  He was treated with NSAIDS with some relief.  Again, there was no evidence or history of urinary incontinence, urinary urgency, urinary retention requiring catherization, nocuria, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction or dizziness; likewise, he again endorsed decreased motion, stiffness, spasms and pain, but denied any fatigue or weakness in his neck.  His pain was sharp and intermittent, aggravated by range of motion of his neck.  He denied any flare-ups at that time.  There was no evidence of any incapacitating episodes.  

On examination, the Veteran had bilateral spasming, tenderness and pain with motion of the cervical sacrospinalis muscles, but did not have any atrophy, guarding or weakness.  The examiner concluded that the noted muscle spasming, localized tenderness and guarding was not severe enough to be responsible for any abnormal gait or abnormal spinal contour.  With regards to that, the examiner noted symmetrical appearance, normal head position and gait on examination.  The Veteran's motor, sensory and reflex tests of the upper extremities were all normal, and there was normal muscle tone without any evidence of muscle atrophy.  

The examiner stated that there was no cervical spine ankylosis.  The Veteran had flexion to 40 degrees, with pain beginning at 20 degrees; extension to 20 degrees with pain throughout that motion; bilateral lateral flexion to 20 degrees with pain throughout that motion; and, bilateral lateral rotation to 70 degrees with pain beginning at 40 degrees.  The examiner noted that there was no additional loss of range of motion after repetitive testing.  X-rays were included which showed degenerative changes and evidence of a spinal fusion of the cervical spine.  There was no effect on the Veteran's shopping, traveling, feeding, bathing, dressing, toileting or grooming; however, there was a mild effect on his recreation and moderate effect on his ability to do chores, exercise, or sports.  The examiner additionally noted that material handling of in excess of 10 pounds by the Veteran's upper extremities in pushing or pulling will increase his pain severity.  

The Veteran underwent another VA examination of his cervical spine disability in July 2012.  At that time, he reported that he had "some neck pain and it [felt] like it will pop out or it like locks up."  He denied any flare-ups at that time.  On examination, the Veteran had 45 or greater degrees of flexion and extension without any painful motion; 35 degrees of bilateral lateral flexion without evidence of painful motion; and, 70 degrees of bilateral rotation without evidence of painful motion.  Those ranges of motion were unchanged after repetitive testing.  The examiner noted that the Veteran did have less movement than normal, but did not note any additional loss of range of motion as a result of repetitive testing.  He also noted that there was no evidence of localized tenderness, pain on palpitation, muscle spasming or guarding on examination.  Upper extremity muscle strength testing was normal and there was no evidence of muscle atrophy at that time.  Likewise, reflex and sensory examinations of his upper extremities were normal.  There was no evidence of radicular pain or radiculopathy at that time.  The Veteran was noted as having IVDS, but that there were no incapacitating episodes noted within the last 12 months at that time.  It was noted that the radiographic studies demonstrate cervical spine arthritis.  His cervical spine was not noted as affecting his ability to work.

The Board has additionally reviewed subsequent VA treatment records associated with the Veteran's Virtual VA efolder.  Those records demonstrate that in October 2009, the Veteran reported having a stiff neck in the morning with episodes of locking up and popping with cracks during range of motion.  He denied bowel or bladder symptoms.  On examination, the Veteran paracervical muscles were tender and there was no evidence of spasms.  He had extension to 10 degrees and rotation to 60 degrees.  There was crepitus with range of motion testing, and his neurological signs were intact.  The Board notes that all the other incidents of treatment throughout those records are similar too or are less thorough than the October 2009 record.  There is no forward flexion or full range of motion testing results in any of those records.

In light of the foregoing evidence, the Board finds that a 20 percent evaluation for his cervical spine disability is warranted beginning February 2, 2004, but no higher.  The Board's reasoning is as follows.

In the November 2006 VA examination-the first examination following the expiration of the convalescence period for the Veteran's cervical spine procedure-the Veteran's combine range of motion for his cervical spine was 145 degrees, which is less than 170 degrees.  Such commensurates to a 20 percent evaluation under the appropriate Diagnostic Code.  

The Board additionally notes that the Veteran has 20 degrees of flexion in the August 2008 VA examination-such represents the lowest noted flexion value during the entire appeal period.  Likewise, there is no evidence of either favorable or unfavorable ankylosis of the Veteran's cervical spine throughout the appeal period.

Thus, in light of the lack of any ankylosis-either favorable or unfavorable-or any cervical spine flexion 15 degrees or less, the Board must deny an evaluation in excess of 20 percent for the period beginning February 2, 2004.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.

The Board has additionally considered application of Diagnostic Code 5243 in this case and finds that there is no evidence of any physician-prescribed bedrest or any other evidence of incapacitating episodes throughout the entire appeal period.  Therefore, Diagnostic Code 5243 is not applicable in this case.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Accordingly, the Board finds that a 20 percent evaluation, but no higher, is warranted for the Veteran's cervical spine disability beginning February 2, 2004.  See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243.

Separate Evaluation for Left Upper Extremity Neuropathy

The Board notes that the Veteran's cervical spine disability indicates that there is associated left upper extremity neuropathy involvement.  Therefore, the Board must consider whether a separate evaluation for that disability is appropriate.  See Estaban v. Brown, 6 Vet. App. 259 (1994) (in cases where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps).  

In addition to the above noted evidence, a February 2006 cervical spine electromyelographic (EMG) study demonstrates "mild evidence of left C7 chronic radiculopathy," though a full study was not able to be performed at that time due to the Veteran being unable to tolerate it.

Given the Veteran's numerous and consistent statements from throughout the appeal period with regards to numbness and tingling in his left upper extremity, as well as that February 2006 EMG study, the Board finds that a separate 20 percent evaluation under Diagnostic Code 8510, for mild incomplete paralysis of his upper radicular group (fifth and sixth cervical) is warranted.  

The Board notes that a higher evaluation is not for application because there is no evidence of moderate or severe incomplete paralysis, or complete paralysis, which is demonstrated by all shoulder and elbow movements lost or severely affected, though hand and wrist movements are unaffected.  See 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2012).

The Board has picked Diagnostic Code 8510 as that Diagnostic Code appears to be the most appropriate Diagnostic Code relevant to the Veteran's described symptomatology in his lay statements.  However, given that the Board's finding of mild symptoms, the same evaluation would be been rendered under the other applicable Diagnostic Codes available.  See 38 C.F.R. §§ 4.27, 4.124a, Diagnostic Codes 8511, 8512, 8513 (noting a 20 percent evaluation for mild incomplete paralysis for minor extremity involvement for all upper extremity radicular Diagnostic Codes).

The Board assigns the 20 percent evaluation for left upper extremity neuropathy on the earliest date assignable at this time, May 23, 2003-the date following the final and unappealed May 2003 rating decision.  See 38 C.F.R. § 3.400(o) (2012).

Finally, the Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is adequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected cervical spine disability, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. 

The Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  In this case, the evidence of record does not indicate that the Veteran is currently unemployed due to his cervical spine disability, nor does the Veteran assert at any point throughout the appeal period that he is currently unemployed due to that disability.  Since there is not any evidence of record that the Veteran's cervical spine disability causes him to be unable to secure and follow substantially gainful employment, the Board finds that a remand for such an opinion is not required in this case.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An evaluation in excess of 10 percent for the Veteran's cervical spine disability, for the period prior to October 17, 2003, is denied.

For the period beginning February 2, 2004, a 20 percent evaluation, but no higher, for the Veteran's cervical spine disability is granted.

A separate 20 percent evaluation for the Veteran's left upper extremity neuropathy associated with his cervical spine disability, beginning May 23, 2003, is granted, subject to the regulations controlling the payment of monetary benefits.


REMAND

With regards to the Veteran's right shoulder evaluation claim, the Board notes that the Veteran's representative specifically requested remand for additional examination of the right shoulder due to the July 2012 findings being inadequate, particularly with regards to the effect his disability has on his occupational functioning and employability.  The Veteran underwent a VA examination of his right shoulder in July 2012.  He was shown to have 170 degrees of flexion and abduction, without any objective signs of painful motion during the examination, at that time; there was no loss of motion after repetitive testing.  The examiner noted that there was some occupational impairment, including that his right shoulder disability "may affect reaching over head."  The examiner's conclusion is inconsistent with the Veteran's range of motion testing, and it does not at all discuss any of the Veteran's lay complaints.  It is additionally speculative in nature.  

In light of these deficiencies, the Board finds that a remand is necessary in order for a new VA examination be obtained.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Tampa, Orlando, and Miami VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since April 2012 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his right shoulder disability, which is not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Schedule the Veteran for a VA orthopedic examination in order to determine the current nature and severity of the Veteran's right shoulder disability.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted.  

The examiner should conduct range of motion testing and provide an opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare-ups.  Such additional functional limitation should be reported in terms of the degrees of additional limitation of motion.

The examiner should also specifically comment on the following:

(a) Whether there is dislocation of, malunion of, or nonunion of the Veteran's right clavicle or scapula; and, if so, whether there is any associated instability or loose movement of the right shoulder.

(b) Whether there is any ankylosis of the right shoulder, and if so, its angle.  

(c) Whether there is any impairment of the Veteran's right humerus, including: 

(1) loss of head of (flail shoulder); 
(2) nonunion of (false flail joint); 
(3) fibrous union of; 
(4) malunion of, and if so, whether such is a slight, moderate or marked deformity; or, 
(5) recurrent dislocation at the scapulohumeral joint, and if so, whether there are frequent or infrequent episodes and whether there is guarding of arm movements throughout all movements or just at shoulder level.

The examiner should additionally discuss the Veteran's occupational and functional impairments with regard to his right shoulder disability.  The examiner should specifically discuss the Veteran's complaints with regards to any occupational or other functional impairments reported during the examination or in the claims file.

If the examiner opines that any of the above questions cannot be resolved without resort to speculation, then reasons why this is so must be provided.  The examiner should also report whether there is additional evidence that would permit the necessary opinion to be provided.

4.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's increased evaluation claim for his right shoulder disability.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant 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.  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).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs