Citation Nr: 1335450 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-27 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent for service-connected degenerative disc disease of the cervical spine. 2. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected arthritis of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to February 1976 and from August 1980 to October 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire cervical spine. 2. The Veteran's right knee arthritis does not cause limitation of flexion to 30 degrees or less or nearly approximate the criteria for a higher rating even with consideration of his complaints of pain. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 30 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). 2. The criteria for an initial disability evaluation in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5260, 5257, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Veteran's claims of entitlement to increased initial evaluations for cervical spine and right knee disorders arise from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, claims are substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA treatment records have been obtained and associated with the file. Records on Virtual VA have been reviewed. A VA examination with respect to the issues on appeal was obtained in February 2010. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report is adequate because the examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disabilities. Id. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). 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. It is not expected that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient, and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Cervical Spine The Veteran seeks an initial disability evaluation in excess of 30 percent for his service-connected degenerative disc disease of the cervical spine, which has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, degenerative arthritis of the spine. Disabilities of the spine (other than intervertebral disc syndrome (IVDS) when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating for unfavorable ankylosis of the entire cervical spine and a 100 percent rating for unfavorable ankylosis for the entire spine. Note (2) of 38 C.F.R. § 4.71a provides that 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. The normal combined range of motion of the cervical spine is 340. See also Plate V, 38 C.F.R. § 4.71a. As noted above, disabilities of the spine may be rated under the diagnostic criteria for IVDS based on incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Because the evidence does not indicate that the Veteran has had incapacitating episodes as defined under Diagnostic Code 5243, Note (1), this rating criteria will not be discussed. In November 2009, the Veteran reported to a VA neurologist that his neck pain had progressively worsened, causing intermittent weakness of the bilateral upper extremities and paresthesias. He said he had an episode of neck pain and stiffness so severe that he sought treatment at the emergency room. He was discharged with heat packs and muscle relaxers. Other symptoms included cold, tingling sensation in the upper extremities that occurred twice per week and lasted two to three hours. Weakness of the upper extremities manifested during the same episodes, but usually in only one extremity or the other, not simultaneously. In December 2009, the Veteran reported to a VA neurologist that twice per day, he would get a tingling feeling down either upper extremity to fingers 4 and 5, with a feeling of weakness, lasting fifteen minutes to two hours. He was lifting 50 to 70 pounds in a warehouse and was unsure if taking time off would relieve his symptoms. The neurologist reviewed the March 2008 MRI and noted that the Veteran had probable congenital fusion of C3-4, a bulge of C4-5 disc with mild stenosis, and mild neural foraminal narrowing at several levels. Range of motion (ROM) of the cervical spine showed flexion to 90 percent and extension to 80 percent, with minimal discomfort. The Veteran had some pain in the right trapezius area when extending to the right and spurling to the left. He had minimal discomfort with extension to the left and spurling to the right. Rotation was 70 degrees to either side. The neurologist observed mild tenderness over the T3 spinous process. Motor and sensory testing was normal. The impression was neck pain with no apparent root or cord compression. The Veteran indicated that he was going to try to get a leave of absence from work to see if rest would relieve his symptoms. The neurologist opined that the tingling in the ulnar hand could be thoracic outlet. The Veteran had a VA examination in February 2010. The examiner summarized the medical history. He did not observe spasm of the cervical spine or palpable tenderness of the cervical spine. ROM of the cervical spine showed flexion measuring to 10 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 10 degrees, right rotation to 40 degrees, and left rotation to 30 degrees. The examiner found no change in ROM after the final ranges with increased pain, fatigability, weakness, lack of endurance, after the final range of repetitive motion. The examiner did not observe neurologic abnormalities related to the cervical spine. Here, the Board finds that a disability evaluation lesser than or in excess of 30 percent is not warranted for the cervical spine disorder at any time during the period pertinent to this appeal. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Simply, the evidence does not show that the Veteran's cervical spine is unfavorably ankylosed. Unfavorable ankylosis is a condition in which the entire cervical 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. The Board has considered the Veteran's complaints of pain as well as the noted fatigue, weakness, and lack of endurance after repetitive testing but finds that these symptoms are not of sufficient severity to find that the Veteran's condition nearly approximates the criteria for the next higher rating, which requires unfavorable ankylosis. The Board has also considered the Veteran's complaints of tingling and weakness of the upper extremities and whether separate ratings are warranted for neurologic manifestations; however, in December 2009, motor and sensory testing was normal and the VA neurologist opined that the tingling in the ulnar hand could be thoracic outlet. No root or cord compression was observed. Further, the VA examiner did not find neurologic abnormalities related to the cervical spine. Consequently, without neurologic abnormalities attributable to the cervical spine, a separate rating cannot be granted for the Veteran's complaints of tingling and weakness of the upper extremities. For the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of an initial disability evaluation higher than 30 percent for service-connected degenerative disc disease of the cervical spine. B. Right Knee The Veteran seeks an initial disability evaluation in excess of 10 percent for his service connected right knee, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including 5256 (ankylosis), 5257 (other impairment, including recurrent subluxation or lateral instability), 5258 and 5259 (concerning semilunar cartilage), 5260 (limitation of flexion), 5261 (limitation of extension), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). Based on a review of the evidence, the only diagnostic criteria applicable in this case is Diagnostic Code 5260, limitation of flexion; therefore, the other diagnostic codes under 38 C.F.R. § 4.71a will not be discussed. Degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, limitation of flexion, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. The Veteran had a VA examination in February 2010. He reported constant right knee pain and occasional swelling. He used a cane to walk when the knee swelled. He reported one episode of locking and one episode of giving way in the past year. The knee did not interfere with his work on a day-to-day basis and was not the cause for his medical leave. The examiner observed normal alignment and gait. The Veteran's ROM measured to 135 degrees of flexion and 0 degrees extension. No additional limitations were noted after repetitive motion. The Veteran expressed slight increased pain at the extreme of full extension after the final test but no fatigability, weakness, lack of endurance, or incoordination. The examiner observed tenderness in the lateral and medial joint lines of the right knee. Patellar alignment and tracking was normal with no evidence of patellar subluxation. Ligament testing was normal. X-rays showed slight medial joint space narrowing. The diagnosis was slight medial compartment arthritis. In this case, there is no evidence of record that would warrant a disability evaluation lesser than or in excess of the currently assigned 10 percent rating for the right knee disorder at any time during the period pertinent to this appeal. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The evidence does not show that the arthritis of the right knee involves two or more major joints or two or more minor joint groups. Therefore, a 20 percent rating is not warranted under Diagnostic Code 5003. Further, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260 because the Veteran's flexion is not limited to 30 degrees. According to the VA examination report, the Veteran's flexion was to 135 degrees, far more than the limitation required for the assignment of an increased evaluation. The Board has considered the DeLuca criteria and 38 C.F.R. §§ 4.40 and 4.45; however, the examiner did not observe additional limitation of motion with repetitive use or fatigability, weakness, lack of endurance, or incoordination. At most, the Veteran expressed slight increased pain at the extreme of full extension after the final ROM test. Even considering the Veteran's complaints of pain and the examiner's observation of tenderness in the patellar region, the Veteran's right knee symptoms are not of the severity to warrant the assignment of an evaluation in excess of 10 percent. At most, the severity of the right knee condition warrants the currently assigned 10 percent rating under Diagnostic Code 5003 for confirmed limitation of motion that is noncompensable under the appropriate diagnostic codes. For the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of an initial disability evaluation higher than 10 percent for service-connected arthritis of the right knee. C. Extraschedular Ratings Generally, evaluating a disability using either the corresponding or the analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20 , 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). 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. Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates the Veteran's disability picture, and the assigned schedular evaluation is adequate, and no referral is required. The schedular evaluations in this case are adequate. The evidence does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology for the cervical spine and right knee disorders. As discussed above, there are higher ratings available under the applicable diagnostic codes, but the Veteran's disabilities are not productive of such manifestations. As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun, 22 Vet. App. 111. Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability evaluation based on individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. The record indicates that the Veteran is working and there is no allegation that his service-connected disability has resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER An initial disability evaluation in excess of 30 percent for service-connected degenerative disc disease of the cervical spine is denied. An initial disability evaluation in excess of 10 percent for service-connected arthritis of the right knee is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs