Citation Nr: 1334033 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-27 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Entitlement to an increased rating for intervertebral disc syndrome of the cervical spine, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to June 1969. His decorations include the Purple Heart and the Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The U.S. Court of Appeals for Veterans Claims has held that TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the question of entitlement to a TDIU was raised by the evidence of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement for TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's cervical spine disability is not manifested by unfavorable ankylosis of the cervical spine nor are there incapacitating episodes of intervertebral disc disease. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, in June 2010, the Veteran was provided compliant VCAA notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in November 2011. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Records associated with the Veteran's claims file include service treatment records, post service treatment records, private treatment records and VA examination reports. The Veteran has not indicated the existence of additional pertinent evidence. Hence, 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). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. 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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran's service-connected cervical spine degenerative disc disease is currently rated as 30 percent disabling under Diagnostic Code (DC) 5243. He filed the instant claim for an increased rating in June 2010. The Board notes that he is in receipt of separate compensable ratings for peripheral neuropathy of the right and left upper extremities. Although initially the appeal included the left upper extremity, following issuance of the statement of the case, the Veteran specifically limited the appeal to his cervical spine evaluation. The Veteran has not appealed the November 2011 rating decision granting peripheral neuropathy of the right upper extremity. Accordingly, the upper extremity disabilities are not before the Board, and symptomatology associated with such cannot be considered in evaluating the Veteran's cervical spine disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The regulations provide for evaluation of the spine 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 under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2013). Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 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. 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. Id. at Note (2); see also 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. 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. 38 C.F.R. § 4,71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2013). The Veteran contends that his service-connected cervical spine disability is worse than the 30 percent disability rating presently assigned. He has stated that he has lost movement in his neck and has to turn his whole body when looking behind him. Post-service VA treatment records show that the Veteran underwent a Magnetic Resonance Imaging (MRI) test in January 2010. The MRI report reflected multilevel degenerative changes, but no abnormal post contrast enhancements or evidence of myelophatic changes. A March 2010 Neurosurgery consult note shows that the Veteran's neck movements were particularly restricted for rotation and extension. The Veteran was afforded a VA examination in July 2010. The Veteran reported constant pain in his neck, which radiated to the posterior aspect of his head. He noted numbness is both arms. It was noted that his last steroid injection for pain was four to five years ago. He reported that he did not need bed rest or suffer from weakness. The functional limitations reported were that he could not lift more than 30 pounds, that if he turned his head to quickly, he experienced a flare-up that would last three minutes, and that he had to slow down while doing physical activities. Upon examination, the Veteran's curvature and posture were found to be normal. There was no tenderness to palpation of spine and no spasms were found. The Veteran's upper extremity strength was 5/5. The Veteran's sensation was decreased in the left upper extremity. The Veteran's brachial reflexes were 2+ bilaterally and no atrophy was noted in the muscles. The Veteran's cervical spine range of motion for forward flexion was 15 degrees. Pain was experienced at 15 degrees. The Veteran's range of motion for cervical extension was 5 degrees. Pain was experienced at 5 degrees. The Veteran's bilateral lateral rotation and flexion were measured at 10 degrees. Pain was experienced at 10 degrees. No additional limitation by pain, fatigue, weakness, or lack of endurance was found. Private medical records dated in June 2011 show that the Veteran underwent an MRI. The Veteran complained of neck pain and numbness and tingling radiating down his arm. His upper extremity strength was found to be 5/5 and his reflexes were symmetrical. An August 2011 addendum and review of the above mentioned MRI results show that the Veteran suffered from multiple levels of degenerative changes to the cervical spine. There was no evidence of spinal canal stenosis or signal abnormalities to the spinal cord. The Veteran underwent a VA examination in November 2011. The Veteran reported intermittent neck pain which was aggravated by movement. He noted that his flare-ups occurred five times per month. Upon examination, the Veteran's cervical spine range of motion for forward flexion was 5 degrees. Objective evidence of pain began at 5 degrees. The Veteran's cervical spine extension was 5 degrees. Pain was found to begin at 5 degrees. The Veteran's right lateral flexion and left lateral flexion were both 5 degrees and pain began at 5 degrees. The range of motion for the Veteran's right lateral rotation and left lateral rotation were both 5 degrees. Objective evidence of pain began at 5 degrees. After repetition, all of the ranges of motion for the movements mentioned above were 5 degrees. No additional limitation of motion was found after repetition. No localized tenderness or pain to palpation was found. No guarding or muscle spasms were found. The Veteran's muscle strength was 5/5 and his reflexes were normal. The examiner noted his review of the Veteran's January 2010 MRI. The examiner also reported that the Veteran suffered from radicular pain, but no other neurologic abnormalities were found. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds the Veteran's cervical spine symptomatology is appropriately evaluated as 30 percent disabling, the maximum rating assignable for limitation of motion. In order to assign a higher rating, the record must establish that unfavorable ankylosis of the cervical spine is present. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The medical records clearly demonstrate that while range of motion of the Veteran's cervical spine is significantly limited, some range of motion is present. At the November 2011 VA examination, the Veteran's forward flexion was 5 degrees, which supports a 30 percent rating under Diagnostic Code 5243. Upon repetition, his range of motion was still 5 degrees, with pain associated with movement. Thus, it cannot be concluded that the Veteran has ankylosis of the cervical spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation, inasmuch as there is no clinical evaluation of ankylosis. Moreover, as a 30 percent rating is the maximum evaluation assignable for limitation of motion, a higher rating based on pain cannot be established. See Johnston v. Brown, 10 Vet. App. 80, 5 (1997) (even though there was evidence that the appellant had some functional loss due to pain in his wrist, a remand for to consider functional loss due to pain was not appropriate because the appellant was already receiving the maximum disability rating available for limitation of motion of the wrist). Additionally, neurological manifestations of the intervertebral disc syndrome of the cervical spine may be separately rated under an appropriate diagnostic code (and such rating is then combined with the rating under the General Formula, addressed above). The Board notes the separate ratings of 10 percent are already assigned for peripheral neuropathy of the left upper extremity and peripheral neuropathy of the right upper extremity associated with intervertebral disc syndrome of the cervical spine. On VA examinations, no other neurological manifestations were noted or alleged. The report from the Veteran's November 2011 VA examination reflects that no other neurologic abnormalities due to cervical myelopathy were found. As such, separate ratings for any other neurological manifestations of the back disability are not warranted at any time. The Board has also considered whether a higher rating could be assigned based on incapacitating episodes of intervertebral disc disease. The Veteran does not claim and the evidence of record does not show that the Veteran suffered from incapacitating episodes due to intervertebral disc syndrome involving the cervical spine which required bed rest prescribed by a physician and treatment by a physician. As such, a higher rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The Board has considered the Veteran's assertions of pain, functional limitations, and the need to take pain medication. However, the Veteran's disability level is adequately addressed by the evaluation assigned, especially considering that he receives separate ratings for neurological impairment. Therefore, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 30 percent for intervertebral disc syndrome of the cervical spine. As a final matter, 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) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are 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 and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 describe the Veteran's disability level and symptomatology, and the rating criteria provide for additional or more severe symptoms than currently shown by the evidence based on ankylosis, incapacitating episodes and additional neurological impairment. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In sum, based on the evidence on file, entitlement to an evaluation in excess of 30 percent for intervertebral disc syndrome of the cervical spine is not warranted. As the preponderance of the evidence is otherwise against the Veteran's claim, the benefit of the doubt doctrine is not applicable. 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 Entitlement to an increased rating for intervertebral disc syndrome of the cervical spine, currently evaluated as 30 percent disabling is denied. REMAND Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, entitlement to a TDIU has been raised by evidence of record, and therefore must be addressed on remand. In a July 2010 statement, the Veteran indicated that he was concerned about his ability to work due to his service-connected disability. He stated that he did not know if he could manage the ferry boat correctly. In his October 2011 substantive appeal, the Veteran noted that his pain had progressed to a level that no longer allowed him to work as a ferry boat captain. At his November 2011 VA examination, it was reported that the Veteran had stopped working six weeks prior to the examination, due to limited cervical mobility and cervical pain. The Veteran has not received notice pursuant to the VCAA concerning a claim for a TDIU. Such should be accomplished on remand. In addition, he should be asked to complete a TDIU claim form so he can provide information concerning his employment, education, training, and other relevant factors. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. The Veteran should be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After the above has been completed to the extent possible, the RO/AMC should adjudicate the claim for a TDIU. If additional development is necessary, such as obtaining a medical opinion as to whether the Veteran is unemployable due to his service-connected disability, such should be accomplished. If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case, which includes the relevant laws governing claims for TDIU, and be given a reasonable opportunity to respond. Thereafter, the issue should be returned to the Board if in order. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs