Citation Nr: 1330404 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-12 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for a cervical spine disability. 2. Entitlement to a rating higher than 20 percent disabling for a back abnormality to include degenerative changes from February 28, 2007 to September 17, 2008. 3. Entitlement to a rating higher than 20 percent disabling for a back abnormality to include degenerative changes since September 18, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from December 1959 to December 1966. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The record was held open after the hearing for an additional 30 days so that the appellant could submit additional evidence; however, no additional evidence was received by VA. The issue of entitlement to a rating higher than 20 percent disabling for a back abnormality, to include degenerative changes, since September 18, 2008, 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. FINDINGS OF FACT 1. Service connection for a neck disability was denied in a June 2005 Board decision. 2. The evidence added to the record since the June 2005 decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim. 3. From February 28, 2007 to September 17, 2008, the Veteran's back abnormality to include degenerative changes was not manifested by forward thoracolumbar flexion to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The June 2005 Board decision denying service connection for a cervical spine disability is final. New and material evidence to reopen the claim for service connection for a cervical spine disability has not been received. 38 U.S.C.A. §§ 5108, 7104 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.159 (2012). 2. The criteria for a rating higher than 20 percent disabling for a back abnormality to include degenerative changes are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in June 2007 and September 2008, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. Virtual VA documents have also been reviewed. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). New and Material Generally, a claim which has been denied in an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran appeals the decision denying his effort to reopen his claim of entitlement to service connection for a cervical spine disability. In December 2001, he submitted a claim for service connection for a neck injury. In March and April 2002 rating decisions, service connection for a neck condition was denied. The RO found that the evidence was devoid of a showing that the disability had been clinically diagnosed and there was no evidence of any cervical condition during service. The Veteran perfected an appeal and in a June 2005 decision, the Board concluded that the Veteran's cervical spine disability, manifested by degenerative changes, was is not due to disease or injury that was incurred in or aggravated by active service. The Veteran did not appeal the Board's decision, and it is therefore final. 38 U.S.C.A. § 7104. At the time of the Board's denial, the record contained service treatment records which showed complaints of back pain. Also of record were outpatient treatment records showing a history of chronic neck pain. The March 2004 VA examination assessed degenerative neck pain. The VA examiner opined, however, that it was unlikely that the appellant's neck problems were related to his service. The record also contained the Veteran's statements and contentions that in 1962 a shelf fell and hit him in the back of the neck resulting in a neck injury. Since the last final denial, the Veteran has submitted evidence showing continued complaints of neck pain. He testified in September 2011 that he was not receiving any current treatment for his cervical disorder. He also claimed that the same injury in service that caused his lumbar spine disability also caused his cervical spine disability. On careful review of the record, the Board has determined that new and material evidence to reopen the claim for service connection for a cervical spine disability has not been submitted. The Veteran's claim of entitlement to service connection was previously denied by the Board on the basis that his cervical disability, manifested by degenerative changes, was not due to a disease or injury that was incurred in or aggravated by active service. In June 2005, the record contained evidence showing a cervical spine disability. The evidence received since the last final denial consists of duplicates of what is already of record and other documents which show that the Veteran has the claimed disability. Although the Veteran has re-submitted evidence showing continued complaints of neck pain, that fact had already been established. Therefore, such evidence is cumulative. The appellant's statements regarding his injury in service are also cumulative as he continues to assert that his injury resulted from boxes falling on him in service. The United States Court of Appeals for the Federal Circuit has held that, according to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not previously been presented to the Board. Anglin, 203 F. 3d at 1347. Thus, even though the appellant has submitted more recent statements regarding boxes falling on him in service which he believes resulted in his current injury, the evidence is essentially duplicative of evidence submitted in the past. Regardless of what the RO has done, the Board must address the question of whether new and material evidence to reopen the claim for service connection has been received because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Here service connection for a cervical spine disability was denied in June 2005 because the evidence failed to show that the disability was incurred in or aggravated by active service. No material facts have changed. As before, there is no medical evidence of a continuity of symptoms since separation from service, there is no competent evidence of compensably disabling cervical arthritis within one year of the appellant's discharge from active duty, and there is no competent evidence linking a current cervical spine disorder to either service or a service connected disorder. As such, the Board finds that new and material evidence has not been presented, and the claim may not be reopened. Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran appeals the 20 percent rating assigned for his back abnormality to include degenerative changes. This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the general rating formula for diseases and injuries of the spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine that is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habits, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. During a June 2007 VA examination, the Veteran reported continued back pain and stiffness. He described pain that started in the middle of the lower back and radiated across the belt line. He denied radiating pain to the extremities, as well as bladder or bowel incontinence. He wore a brace for the lower back but did not use assistive devices for ambulation. Examination revealed no noticeable swelling, redness or obvious deformities. There was tenderness to palpation at L4-L5. Forward flexion was to 55 degrees with slight pain prior to beginning range of motion. The pain increased beginning at 55 degrees, he was unable to continue any further. There was an absence of 35 degrees of forward flexion secondary to increased pain. Pain was a limiting factor. There was no weakness, decreased endurance or easy fatigability with repetitive range of motion. Repetition did not change the degree of motion to which the appellant could move or increase pain. Straight leg raises were negative and cranial nerves were grossly intact. His reflexes were normal and sensation was adequate. Degenerative arthritis of the lumbar spine with chronic pain was diagnosed. The Veteran continued to describe low back pain during the September 2008 VA examination. He denied radiculopathy, paresthesias, sensory abnormalities or dysesthesias. He admitted to limitation of motion and functional impairment during flare ups with the limiting factor being pain. There were no bladder or bowel complaints. He denied use of assistive devices but continued to wear a lumbar brace. When examined, lumbar flexion was to 60 degrees with pulling at the beginning at 60 degrees. There was an absence of 30 degrees for flexion. Repetitive range of motion did not change the degree of motion to which the appellant could move, or cause weakness, incoordination or easy fatigability. Pain was the limiting factor. Straight leg raises did not elicit pain. There was no muscle atrophy. His motor strength was 5/5 bilaterally, and upper and lower reflexes were intact. The diagnosis was lumbar degenerative disk disease with chronic pain. Based on the evidence presented, the Board finds that entitlement to a rating higher than 20 percent disabling is not warranted. In this regard, although the Veteran's lumbar spine disability is manifested by a limitation of motion, the evidence discloses that the remaining functional forward thoracolumbar flexion is consistently greater than 30 degrees. Range of motion testing revealed, at worst, forward flexion to 55 degrees even when accounting for pain. There is no evidence of any throracolumbar ankylosis. The Veteran retains the ability to forward flex to 55 degrees with pain. Such movement demonstrates that his back is not functionally ankylosed or lacking the ability to flex. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also accepts that he has functional impairment. DeLuca. Neither the lay nor medical evidence, however, reflects either a functional limitation of forward thoracolumbar flexion due to weakness, fatigue, instability, etc to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. Moreover, it is important to recall that under the regulation governing the evaluation of lumbar disorders, the general rating criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine in the absence of further, measurable functional limitations. 38 C.F.R. § 4.71a. At best, the lay and medical evidence of record demonstrates that a 20 percent rating is warranted, but not more. The more probative evidence consists of that prepared by a trained medical professional and such evidence demonstrates that the currently assigned rating is appropriate. The Board considered whether the Veteran's lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. While the Veteran testified during his September 2011 hearing that his back pain is so severe at times that he has to sit down and stop what he is doing, incapacitating episodes are not shown by the record. That is, there is no evidence demonstrating any flare ups of back pain requiring physician prescribed bed rest. 38 C.F.R. § 4.71a. Without such evidence entitlement to a higher rating under the formula for rating an intervertebral disc syndrome based on incapacitating episodes is not warranted. The Board also finds no basis for assignment of a separate rating for neurologic manifestations of the Veteran's lumbar spine disability pursuant to Note 1 of the general rating formula. That Note provides that associated objective neurologic manifestations are to be rated separately under the appropriate diagnostic code. The Veteran reported during his September 2011 hearing that he has radiating pain from his lower back to his legs every once in a while. Specifically, he described such pain occurring maybe once or twice a year and that such only started within the last two years. During his VA examinations in June 2006 and September 2008, however, he denied radiating pain to the lower extremities. He also denied bowel or bladder problems. Motor strength and reflexes were clinically normal and no neurological abnormalities were seen at those examinations. There is no evidence that demonstrates neurologic manifestations of the lumbar spine disability for the period addressed in this decision. As such, there is no basis for assignment of a separate rating for neurologic symptoms. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms such as pain, stiffness, or aching in the lumbar spine, these symptoms are specifically contemplated by the general rating formula. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. While the Veteran is unemployed, his unemployment has not been attributed to his service connected lumbar spine disability. Rather, it is shown that he is retired and there is no indication that retirement was due to his service-connected lumbar spine disability. There is thus no indication in the record that he is unemployable as a result of his service connected disability. Consequently, the Board finds there is no implicit claim for total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER New and material evidence has not been received, the claim of entitlement to service connection for a cervical spine disability is not reopened. Entitlement to an evaluation higher than 20 percent disabling for back abnormality to include degenerative changes from February 28, 2007 to September 17, 2008 is denied. REMAND The Veteran and his representative indicate that the appellant's back abnormality to include degenerative changes has worsened since his last VA examination in September 2008. Specifically, he claims to suffer from a decreased range of motion since his last VA examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected lumbar spine disability. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); 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 and associate with the record VA outpatient treatment records from September 2007 to present. Further, ask the Veteran to authorize VA to obtain any outstanding and relevant private treatment records pertaining to his lumbar spine. All attempts to procure such records must be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA compensation examination to determine the nature and severity of his back abnormality to include degenerative changes. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner must be provided access to the appellant's claims folder, to include Virtual VA, and a copy of this remand. Range of motion findings reported in degrees must be provided in the examination report. The examination report should include findings consistent with the decision in DeLuca. Any limitations due to weakness, fatigability, or incoordination including after repetitive movement must be noted in the examination report, if applicable. When citing range of motion, the examiner should clearly state at which degree pain begins. The examiner should also address any neurological problems associated with the spine. A complete rationale should be provided for any opinion expressed. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs