Citation Nr: 1334430 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-35 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1954 to December 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for cervical spine DDD to 20 percent effective October 30, 2009. The Veteran's claims file is now in the jurisdiction of the St. Petersburg, Florida RO. In March 2013, the case was remanded for additional development. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of an electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to special monthly compensation based on the need for regular aid and attendance is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT At no time during the appeal period is the Veteran's cervical spine disability shown to have been manifested by forward flexion of the cervical spine limited to 15 degrees or less or ankylosis; incapacitating episodes of intervertebral disc syndrome are not shown; and the preponderance of the evidence is against a finding that there are separately ratable neurological symptoms. CONCLUSION OF LAW A rating in excess of 20 percent is not warranted for the Veteran's cervical spine disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Code) 5237, 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000(VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, 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 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A November 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's identified pertinent treatment records have been secured. Select (incomplete) private treatment records have been obtained from June 2007 through October 2009. October to December 2012 records from his nursing home facility were secured. Pursuant to the Board's March 2013 remand, an April 2013 letter from the AMC asked the Veteran to identify (and provide releases for records of) private treatment he received for his cervical spine disability from 2007 and updated records from his nursing home treatment. He did not respond. [The Board notes that the Veteran is incapacitated due to Alzheimer's disease, and appears unable to respond himself; however, correspondence received following the April 2013 letter suggests that his wife is assisting to develop the claim.] While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As the Veteran (assisted by his wife) has declined to co-operate with development for further private records, such development is not possible. The RO arranged for VA examinations in January 2010 and May 2013 (pursuant to the Board's March 2013 remand instructions). Regarding the rating for cervical spine disability, the Board notes that the VA examination reports contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability to provide probative medical evidence adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to the Board's March 2013 remand, VA attempted to secure copies of the Veteran's Social Security Administration (SSA) records. An April 2013 response from SSA notes that his records are unavailable, as they were destroyed. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes that it has reviewed all of the evidence in the Veteran's electronic claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected cervical spine disability has been diagnosed as cervical spine degenerative disc disease (DDD). Consequently, it is properly rated under Code 5243 (for intervertebral disc syndrome (IDS)). Code 5243 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), or based on incapacitating episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less, or with favorable ankylosis of the entire cervical spine; a 40 percent rating is warranted for unfavorable ankylosis if the entire cervical spine. There are several applicable notes following the General Formula criteria, which provide: (1) associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code; (2) for purposes of VA compensation, 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, and (3) in exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a, Notes (1) - (3). Under the Formula for Rating based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) following Code 5243 provides that 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. 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). 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. 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 Veteran's claim for an increased rating was received in October 2009. The relevant period for consideration in this appeal begins one year prior to that submission (i.e., in October 2008). The Board notes that there are no records showing the Veteran sought treatment for cervical spine DDD during the evaluation period. On January 2010 VA examination, it was noted the Veteran was accompanied by his wife, had a history of Alzheimer's and was in a wheelchair. Regarding his cervical spine disability, the Veteran reported neck pain on a scale of 4-5/10, aching pain, stiffness, weakness and fatigability. He did not report incapacitation. He reported muscle spasms, with severe pain 3 to 4 times a year. The pain was localized in the cervical spine, and he denied radiation to the upper extremities. It was noted the Veteran used a neck harness for traction, took Tylenol, applied heat, and rested (which relieved pain). He had not received injections, and did not wear a neck brace. Regarding associated neurological functioning, the Veteran denied any numbness or paresthesias of the upper extremities. He denied any other pains in the upper extremities. He reported some weakness, but no functional loss, and denied any flare-ups. The examiner noted that the Veteran was retired in the early 1990s, and therefore there was no impediment to employment from the cervical spine disability. The examiner also noted that the Veteran was incapacitated and was put on bed rest in November 2009 (following treatment for uncontrolled high blood pressure). On examination, there was no palpable tenderness noted over the cervical spine. There was no evidence of any gross deformity or swelling. There was minimal pain associated with range of motion with gravity and against resistance. Forward flexion was measured from 0 to 40 degrees; extension 0 to 10 degrees; right and left lateral flexion 0 to 10 degrees and right and left lateral rotation 0 to 45 degrees, both bilaterally. The examiner noted that range of motion was limited by natural aging. Repetitive range of motion testing was completed, and did not cause any pain. Some fatigue and weakness were noted, but there was no lack of endurance or incoordination. On neurological examination, the examiner noted the Veteran had decreased motor function in the upper extremities involving the shoulders and decreased strength. There was normal sensation to pinprick, dull light touch and vibratory sense in both upper extremities with sporadic change in sensation to pinprick, dull light touch and vibratory sense in both lower extremities. Cervical spine DDD with degenerative joint disease, without radiculopathy was diagnosed. In a December 2010 statement, the Veteran stated that due to his service-connected disabilities, included his DDD, he was unable to walk. A statement from the Veteran's wife, received in January 2011, reported that the Veteran was confined to a wheelchair ninety-nine percent of the time and required traction for his neck. The Veteran's wife also noted the Veteran was completely dependent on her for daily activities and that she was unable to leave him alone. Nursing records from May 2012 showed that the Veteran was admitted to a residential facility for maintenance therapy and nursing care. He was admitted for multiple medical problems (service-connected and nonservice-connected), including hypertension, cardiac disease, degenerative joint disease, gastro esophageal reflux disease, Alzheimer's disease, BPH, and depression. A December 2012 letter from the Veteran's registered nurse practioner at the nursing home noted he showed progressive decline. The letter did not specifically address his cervical spine DDD. On May 2013 examination, cervical spine DDD without radiculopathy was diagnosed. The examiner specifically noted that although there was severe demyelinating polyneuropathy with profound deconditioning, it was not caused by or related to his service-connected cervical DDD. The examiner noted that due to his severe dementia, the Veteran was unable to follow instructions for range of motion studies. Range of motion measurements could not be taken; however, the examiner noted that he observed the Veteran rotate his neck as much as 40 degrees bilaterally without distress. Repetitive testing was likewise unable to be performed. No tenderness, guarding or muscle spasm was noted. No radicular pain or other signs or symptoms due to radiculopathy were noted. It was noted the Veteran had IVDS of the cervical spine, but that there were no incapacitating episodes over the past twelve months. A review of the record found no evidence showing an increase in symptomatology associated with Veteran's cervical spine disability. He apparently does not receive any substantial treatment specifically for the neck disability. On January 2010 examination forward flexion was to 40 degrees. On most recent examination, while the Veteran was unable to complete range of motion studies due to his dementia, he was observed to rotate his neck 40 degrees bilaterally without distress. Such findings do not reflect (or suggest) that there is limitation of cervical flexion to 15 degrees or less, so as to warrant the next higher (30 percent) rating, even with factors such as pain and weakness considered. The Board finds significant that on the most recent examination observation of painless rotation to 40 degrees was made (even though range of motion studies could not be completed due to the Veteran's dementia). The observation reflects actual functional capacity noted. Notably, as the Veteran is able to rotate the spine; it is not ankylosed. The medical evidence of record does not show nor does the Veteran allege that he had incapacitating episodes of cervical IVDS during the appeal period. Consequently, rating based on incapacitating episodes would not be appropriate. Further, although the Veteran exhibited neurological manifestations, including decrease in motion function and motor strength of the upper extremities, the May 2013 VA examiner found that these neurological symptoms were not attributable to the cervical spine disability. No radicular pain was found on examination. Accordingly, the preponderance of the evidence is against a finding that the Veteran has separately ratable neurological impairment of the upper extremities due to the cervical spine disability. In summary, the evidence of record does not show symptoms or functional impairment meeting or more nearly approximating the criteria for the next higher rating under any applicable criteria. Consequently, a rating in excess of 20 percent for the cervical spine DDD disability is not warranted for any period of time under consideration. The Board has also considered whether referral for extraschedular consideration is warranted. There is no objective evidence of symptoms of and/or impairment due to the cervical spine disability not encompassed by the schedular rating assigned. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the evidence of record does not suggest, and the Veteran has not alleged unemployability due to the cervical spine disability (he retired in the early 1990s and has other disabilities that render him incapable of working), the matter of entitlement to a total rating based on individual unemployability is not raised in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 20 percent for DDD of the cervical spine is denied. REMAND Regarding the Veteran's application for aid and attendance, the March 2013 remand instructed the RO to obtain a medical opinion to determine whether the Veteran was permanently bedridden or so helpless as to be in need of regular aid and attendance due to his service-connected disabilities to include a post-total replacement knee disability; coronary artery disease; cervical spine DDD; a left foot plantar wart; left eye residual recession superior rectus muscle with diplopia; bilateral hearing loss; and sinusitis. The May 2013 examiner did not provide such an opinion. Instead the examiner broadly opined that the Veteran met the criteria for aid and attendance for nonservice-connected conditions only. The examiner failed to consider the Veteran's earlier contentions that due to his service-connected disabilities he was unable to walk and was confined to a wheelchair. Additionally, the Veteran failed to consider his wife's 2011 statement that the Veteran was completely dependent on the Veteran prior to his admission into the nursing home. Finally, the examiner failed to address the opinion by the Veteran's nurse practioner that the Veteran was admitted to the nursing home and progressively declined as a result of numerous medical conditions, including his service-connected cardiac conditions and knee disability. Consequently, the examination report is inadequate, and another examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination/opinion, it must provide an adequate one). As the action ordered in the March 2013 remand has not been completed as to the claim for aid and attendance, and the evidence remains inadequate to properly address the matter on appeal, a remand to secure compliance with the previous remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). 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. The RO should arrange for a VA aid and attendance/housebound examination of the Veteran. The Veteran's electronic records must be reviewed by the examiner in conjunction with the examination. The examiner should opine whether the Veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance due to his service connected disabilities (to include: left knee, post-total replacement; coronary artery disease; cervical spine degenerative disc disease; left foot plantar wart; left eye residual recession superior rectus muscle with diplopia; bilateral hearing loss; and sinusitis). The examiner should asses the impairment associated with each of the service-connected disabilities and the combined impact they have on the Veteran's capacity for self-care, , the examiner should also indicate whether the Veteran is bedridden due to service connected disabilities . Additionally, the examiner should discuss whether prior to admission into the nursing home, the Veteran was so helpless as to be in need of regular aid and attendance due to his service connected disabilities (noted above). Specifically, the examiner is asked to comment on the reports by the Veteran's wife that the Veteran was confined to a wheelchair, completely dependent, and cannot be left alone; opining whether such would be so disregarding the effects of disabilities not service-connected. The examiner must explain the rationale for all opinions. 2. The RO should then review the record and re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs