Citation Nr: 1335268 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-30 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating for cervical strain, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active duty service from August 1980 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Baltimore, Maryland, which denied entitlement to an increased rating for cervical spine strain. In December 2007 the RO denied entitlement to TDIU. The Veteran did not submit a notice of disagreement with this decision. During the pendency of the appeal; however, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In her substantive appeal, the Veteran requested a Board hearing at the RO. In a report of contact dated in September 2007, the Veteran agreed to withdraw her hearing request "at this time." She has not subsequently requested a hearing and the requirements for withdrawal of a hearing request have been met. 38 C.F.R. §§ 20.702(e), 20.704(e) (2013). In March 2011, the Board remanded the claim for additional development including a VA examination. FINDINGS OF FACT 1. The Veteran's cervical spine disorder is manifested by reports of pain and limitation of motion, but with flexion of the cervical spine greater than 15 degrees, and a combined range of motion that is far greater than 170 degrees. There are no muscle spasms or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The Veteran has associated mild radiculopathy of all radicular groups on the right. 3. The Veteran's service-connected disabilities do not preclude her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a higher rating for manifestations of cervical spine disorder, currently evaluated as 20 percent disabling have not been met. 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 5235-5243 (2013). 2. A separate 20 percent rating is warranted for right sided radiculopathy as a neurologic manifestation of the cervical spine disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2013). 2. The requirements for a TDIU are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The RO provided the Veteran with substantially compliant notice by letter dated in November prior to the January 2007 decision denying an increased rating for a cervical spine disorder. Another letter was sent in September 2007 for an inferred claim of TDIU, and prior to a December 2007 rating decision which denied TDIU. The claims file contains the Veteran's service treatment records (STRs), private and VA treatment records, and statements provided by the Veteran. The Veteran was afforded several VA examinations. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 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(b); 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must; however, consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the cervical spine provide a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, 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. A rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm and guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. 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 is 0 to 45 degrees, and left and right later rotation is 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. General Rating Formula, Note (2). Intervertebral Disc Syndrome (IVDS), Code (5243), is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two week but less than four weeks during the past twelve months, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula Note (1). When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, functional loss of a joint due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 (regarding arthritis) are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). III. Background The rating for the Veteran's cervical strain has been in effect since April 1, 1984 and is now protected. 38 C.F.R. § 3.951 (2013). The disability is rated under the General Formula for Rating Diseases and Injuries of the Spine,. 38 C.F.R. § 4.71a (2013). The Veteran underwent VA examination in October 2007. At that examination and during VA outpatient treatment in August 2008, the cervical spine range of motion was reportedly normal. The October 2007 examiner essentially found no additional limitation of motion on the basis of functional factors. The October 2007 neurologic examination showed mostly normal findings referable to the cervical spine, except for deep tendon reflexes that were +3 (hyperactive). The August 2008 report shows that deep tendon reflexes were 1/4 (hypoactive). The August 2008 report suggests that the disability may have worsened since the October 2007 VA examination. At a March 2010 VA examination, the Veteran reported that she had not worked since 2007. Prior to that she worked as an MRI coordinator. The examiner noted that the Veteran was limited to sedentary employment. At a November 2011 VA examination, the examiner noted the Veteran was currently diagnosed as having neck pain, and a cervical strain. She had initially been injured in a motor vehicle accident during service in 1982. She reported pain in her neck and numbness in the hands and legs with swelling in the legs. She could not feel her feet. She treated it with gabapentin, naprosyn, flexeril, and percocet. Medication did not stop the pain. The Veteran reported that flare-ups incapacitated her. She reported a current flare-up for the past 3 months. The Veteran used a Rolling walker to ambulate. On examination, the range of motion (ROM) of the cervical spine was flexion to 30 degrees; extension to 40 degree; right and left lateral flexion to 30 degrees, all with pain; and, right and left lateral rotation to 60 degrees without pain. The Veteran was able to perform repetitive movement with no loss of motion. There was no additional loss of motion following repetition. Functionally there was less movement than normal with pain and numbness down the right arm and hand. There was tenderness to palpation along the cervical spine. There was no guarding or muscle spasm. Muscle strength was 4/5 on the right side and normal on the left. The Veteran has radiculopathy with mild pain along the right upper extremity; and intermittent pain; parasthesias and/or dyesthesia, and, numbness. There were no other symptoms. Nerves involved were C5/C6/C7/C8/and T1. The examiner opined that the Veteran's neck and cervical spine disability did not prevent her from holding a job when she was not having flare-ups. Because she now seemed to have flare-ups which last longer periods of time this would impose on her having a full time job because she might need to be off when she had flare-ups. She also has problems with her right hand numbness. She could not sit or stand long periods of time or do any lifting. This would pose a problem with any job she would do. A November 2011 VA neurological examiner noted tenderness or pain on palpation of the cervical spine, there was no muscle spasm or guarding. Muscle strength was mildly weakened (4/5) on the right and normal on the left with no atrophy. Reflexes were 1+ and sensory examination indicated mild decrease in light touch sensation on the right, the left was normal. The examiner noted evidence of mild radiculopathy of the right upper extremity. There was no other evidence of radiculopathy. The examination revealed intermittent moderate LUE pain, and mild parasthesias and dysesthesias. There was RUE evidence of mild radiculopathy and mild parasthesias and dysesthesias of the right upper extremity. There were no other signs of radiculopathy. The left side was noted to not be affected by radiculopathy. There were no other neurological abnormalities. The examiner also noted that the Veteran's peripheral neuropathy impacted her ability to work. Even though there was exaggeration noted during examination, it was at least as likely as not, that the peripheral neuropathy would preclude her from gainful employment. IV. Analysis- An evaluation in excess of the current 20 percent would require limitation of forward flexion approximating 15 degrees. The Veteran's cervical forward flexion has consistently been greater than 30 degrees, and the combined range of motion of the cervical spine has consistently been well over 170 degrees. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). On examinations, the Veteran reportedly did not have pain until the limitations reported on the examinations. She reported flare-ups; but was examined during a flare-up and did not have limitation of motion that approximated the criteria for a rating in excess of 20 percent. Ranges of motion were unchanged after repetitive motion and there was not additional limitation due to other functional factors. Hence, a higher rating is not warranted on the basis of functional impairment. The Veteran has not had muscle spasm or guarding. The spine was not ankylosed. The weight of the evidence is against an increased rating on the basis of limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. The November 2011 examination did show that the Veteran was found to have mild radiculopathy involving all radicular groups in the right upper extremity. Mild incomplete paralysis of all radicular groups of the major or minor extremity warrants a 20 percent rating. A 20 percent rating is therefore warranted for the neurologic impairment resulting from the cervical spine disability. A higher rating would require moderate incomplete paralysis. There have been no findings of a moderate disability. The Veteran was shown to have symptoms involving the fingers and wrists, but has been granted service connection for carpal tunnel syndrome, which compensates her for those disabilities. Additional neurologic disability has not been reported. V. Extraschedular considerations 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) (2013). 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 evaluations are not inadequate. Evaluations in excess of the one assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's cervical disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. VI. TDIU A TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19. Factors to be considered are the Veteran's employment history and his/her educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. VA policy is; however, to grant TDIU in all cases where a Veteran is unable to work due to service connected disability. Rating boards are required to submit to the Director, C&P for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign TDIU under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board may, however, refer the claim to the Director for extraschedular consideration. The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation. Bowling, 15 Vet. App. at 9-10. When evaluating a claim for a TDIU, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In essence, the unemployability question, that is, the Veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of a claimant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342 (2000). The VA General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). In determining whether a veteran is entitled to individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. at 361. Analysis The Veteran currently meets the percentage requirements for TDIU. She is service connected for: IVDS, thoracolumbar spine, rated as 60 percent disabling; dysthymic disorder, rated as 30 percent disabling; cervical strain, rated as 20 percent disabling; radiculopathy, RLE, rated as 10 percent disabling; radiculopathy, LLE, rated as 10 percent disabling; carpal tunnel syndrome, right wrist, rated as 10 percent disabling; carpal tunnel syndrome, left wrist, rated as 10 percent disabling; vaginitis, rated as 0 percent disabling; and, vesicular eruptions, rated as 0 percent disabling. Her combined disability rating was 90 percent. Thus, the Veteran meets the percentage requirements for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The question remains whether the Veteran's service-connected disabilities, regardless of age, prevents her from securing and following substantially gainful employment per 38 C.F.R. § 4.16(b). TDIU was initially denied in a December 2007 rating action as it was determined the Veteran was currently employed. The claim was remanded in March 2011, in part, to have the Veteran submit her employment history and to clarify whether she was currently gainfully employed. In December 2011 the Veteran submitted a resume which revealed that she had earned an AAS degree in business education in 1981; and a BS in health administration in August 2010. She also included a termination letter dated in August 2007 for failure to report to work and failure to provide any documentation to her employer at that time. In September 2012 the Veteran was sent a VCAA letter with a VA form 21-8940 to determine whether or not she was employed. The Veteran did not respond to this request nor has she completed and returned the requested VA form 21-8940 to determine whether or not she was employed. In the Appellant's Brief dated October 2013 the service representative also noted that the Veteran failed to respond to the VA's employment information request. The evidence of record indicates the appellant has continued to fail to respond to the request for employment information. It is the appellant's responsibility to provide sufficient information, particularly regarding her specific employment information in furtherance of her claim on appeal for TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 ("The duty to assist is not always a one-way street. If a [claimant] wishes help, [s]he cannot wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence."). Here, it has not been established that the Veteran is unemployed. She has consistently failed to cooperate with VA in the development of this claim. The record does show that she has been found capable of sedentary employment and her resume shows that her education and occupational experience would qualify her for such employment. In summary, the evidence is against the grant of TDIU. As a preponderance of the evidence is against the Veteran's claim for entitlement to a TDIU, reasonable doubt does not arise and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). ORDER An increased rating for the orthopedic manifestations of cervical strain, currently rated 20 percent disabling, is denied. A separate 20 percent rating for right upper radiculopathy as a manifestation of the cervical spine disability is granted. Entitlement to TDIU is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs