Citation Nr: 1336110 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-01 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable evaluation for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to October 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The December 2008 rating decision granted service connection for degenerative disc disease of the cervical spine and assigned a 0 percent rating, effective October 30, 2008. In February 2012, the Board remanded this case for additional development, and the case has been returned for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file ("Virtual VA") associated with the Veteran's claim. This evidence has been considered in the following decision. FINDING OF FACT The Veteran's degenerative disc disease of the cervical spine is manifested by full range of motion absent demonstrable painful motion. CONCLUSION OF LAW The criteria for assignment of a compensable evaluation for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-43 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2013)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. However, for initial rating claims, where, as here, entitlement to disability benefits has been granted and an initial rating has been assigned, the original claim has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidentiary development letter dated in November 2008, prior to the initial adjudication of the Veteran's claim in December 2008, in which the RO advised the appellant of the evidence needed to substantiate his service connection claim. Following the grant of service connection, this information was provided with respect to the increased rating aspect of his claim in an April 2009 letter. These letters advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that the April 2009 letter was not issued prior to the initial adjudication of the Veteran's claim in December 2008. His claim, however, was subsequently readjudicated, most recently in a May 2012 supplemental statement of the case. Thus, any deficiencies in the timeliness of this notice letter would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records and his VA medical records. The Veteran underwent a VA examination in November 2008. The Board notes that the Veteran's claim was remanded in February 2012 so that the Veteran could undergo a new VA examination to obtain a current picture of the level of impairment that is currently caused by his degenerative disc disease of the cervical spine. This examination was scheduled for March 2012. Notification of this examination was sent to the Veteran's last known address, but he failed to report to the examination. The Board finds that VA satisfied its duty to assist the Veteran in scheduling the requested examination. Additional subsequent measures to locate the Veteran and arrange for an examination, including attempting to reach the Veteran and his mother by telephone, were unsuccessful. The Board further notes that the Veteran's accredited representative has been unable to contact the Veteran, as stated by the representative in the October 2013 informal hearing presentation. VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA, to include informing VA of any change in address. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). In the case at hand, the Board finds that VA satisfied its duty to assist the Veteran to the extent possible under the circumstances by providing him with the opportunity to be reevaluated by a VA examiner and by providing notification of the scheduled examination at his last known address. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). As the instant appeal is an original claim, the Board will rate the Veteran's degenerative disc disease of the cervical spine based on the evidence of record, including the November 2008 VA examination report. The Board finds that VA's duty to assist has been met. Also, the Board finds that there is substantial compliance with the February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. Initial Compensable Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. In a December 2008 rating decision, the Veteran was granted service connection for degenerative disc disease of the cervical spine and was assigned a noncompensable rating, effective October 30, 2008. This rating was awarded pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5242. The built-up diagnostic code under which this disability is rated indicates that the disability of degenerative arthritis (Diagnostic Code 5003) is being rated as degenerative arthritis of the spine (Diagnostic Code 5242). Under Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, 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. Diagnostic Code 5242 assigns ratings for degenerative arthritis of the spine pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 20 percent evaluation is warranted when forward cervical flexion is greater than 15 degrees but not greater than 30 degrees; when the combined range of motion of the cervical spine not greater than 170 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted when forward cervical flexion is to 15 degrees or less; or when there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is in order for unfavorable ankylosis of the entire cervical spine. These criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2013) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2013). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Another intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Because the case at hand involves a diagnosis of degenerative disc disease, the Board notes that 38 C.F.R. § 4.71a, Diagnostic Code 5243, which rates intervertebral disc syndrome, is also for application. That diagnostic code directs that the disability at issue be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes and with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, 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. Turning to the relevant evidence of record, service treatment records show the Veteran complained of neck pain in 2008. The Veteran also underwent a VA examination in November 2008. No other medical evidence of record addresses the Veteran's cervical spine. The November 2008 examination report reflects that the Veteran reported that he experiences neck stiffness with limited mobility and pain with forward bending. He reported having occasional numbness and tingling in his hands that lasts only a few minutes. He denied any incapacitating episodes or flare-ups. He reported he was not using medication. On physical examination, the Veteran's gait was normal without ambulatory aid. He had full range of motion of his cervical spine with forward flexion to 45 degrees, extension to 45 degrees, bending to the left and right to 45 degrees, and rotation to the left and right to 80 degrees. The DeLuca factors as listed above, including functional loss due to pain, weakness, fatigability, incoordination, or pain on movement, were negative. There were no muscle spasms, fixed deformities, or postural abnormalities. Neurologically, the Veteran's gait, stance, and coordination were normal. Cranial nerves II-XII were grossly intact, and no motor or sensory deficits were appreciated. X-rays revealed normal prevertebral soft tissues, alignment, vertebral body heights/disc spaces, facets, and bone mineralization. There were no fractures. There was mild narrowing of the right C5-C6 foramen. Based on the above, the November 2008 VA examiner diagnosed mild cervical disc disease. In his January 2010 substantive appeal, the Veteran reported that he has not been treated for his neck disability because he cannot afford it. He also reported that "the pain from this is quite severe every few days. I take ibuprofen to deal with the pain but I find my mobility increasingly impaired." Based on the above, the Board finds that a compensable evaluation is warranted for the Veteran's degenerative disc disease of the cervical spine. As noted above, the Veteran has been diagnosed with mild cervical disc disease, and there is objective, x-ray evidence of disc space narrowing. The Veteran has reported experiencing pain associated with this disability, having specifically associated this pain with forward bending at the time of the November 2008 examination. Pain, however, was not actually demonstrated on range of motion testing on VA examination. The Veteran is competent to report on symptoms and sincerely believes that his symptoms are severe enough to warrant a compensable evaluation. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the neck impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiner has the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. The Veteran's neck examination did not reveal compensable residuals including no painful motion demonstrated on examination. The Veteran did not demonstrate actual functional impairment on VA examination. As such, he is not entitled to a compensable evaluation. See 38 C.F.R. § 4.59 (providing that painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury); Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (providing that pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance). The Board has also noted the Veteran's November 2008 complaints of occasional numbness and tingling in his hands and has thus considered whether a separate rating is warranted based on any associated objective neurologic abnormalities. However, the Board notes that the November 2008 neurological examination was normal and no medical evidence otherwise indicates the presence of such disability. Again, while the Veteran is competent to report on numbness and tingling in his hands, and credibly believes that these symptoms are due to his neck disability, the competent and credible medical evidence outweighs the Veteran's lay reports. The VA examiner has the expertise to discern whether the Veteran's complaints are actual neurological impairment due to the neck disability. The VA examiner essentially found no such relationship as the exam was normal. Therefore, a separate rating for neurologic abnormality is not warranted. Finally, the Board has considered whether a compensable rating may be assigned based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes of Diagnostic Code 5243. As noted above, a rating of 10 percent requires the Veteran to have had incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. No incapacitating episodes have been reported by the Veteran, and there is no indication that the Veteran has had any incapacitating episodes as defined by the applicable regulation. That is, there is no evidence that the Veteran's neck disability has resulted in periods in which he required physician-prescribed bed rest and treatment to satisfy the definition contained in Note 1 of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Therefore, the Board finds that a compensable evaluation is not warranted. The Board has considered whether the Veteran is entitled to a staged rating. However, at no time during the pendency of this appeal has the Veteran's service-connected degenerative disc disease of the cervical spine been productive of symptomatology associated with a compensable evaluation. As such, a staged rating is not warranted. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to a compensable evaluation for degenerative disc disease of the cervical spine must be denied. In reaching this conclusion, the Board has also considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected degenerative disc disease of the cervical spine is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Board finds that the rating criteria for the Veteran's service-connected degenerative disc disease of the cervical spine adequately contemplate the level of impairment that is demonstrated in the evidence of record. As noted above, musculoskeletal disability ratings contemplate factors such as functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury. The degenerative disc disease in the case at hand is not characterized by any additional complaints or symptoms that are not contemplated by the applicable rating criteria. The Veteran has not described any exceptional or unusual features associated with his neck disability. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his neck disability renders him unemployable and the other evidence of record does not otherwise suggest that this is the case. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record ORDER Entitlement to a compensable evaluation for degenerative disc disease of the cervical spine is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs