Citation Nr: 1336242 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-09 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the cervical spine 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1963 to October 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's degenerative arthritis of the cervical spine manifested with forward flexion of the cervical spine greater than 30 degrees and the combined range of motion of the cervical spine was more than 170 degrees. 2. At no point during the rating period on appeal did the Veteran's degenerative arthritis of the cervical spine manifest with muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. At no point during the rating period on appeal did the Veteran's degenerative arthritis of the cervical spine manifest with ankylosis of the spine or incapacitating episodes. 4. The Veteran's degenerative arthritis of the cervical spine has manifested with mild to moderate functional limitations on some of his daily activities. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial rating of 20 percent, but not higher, for degenerative arthritis of the cervical spine have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.104, Diagnostic Code (DC) 5242, 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist and Notify Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran is challenging the initial evaluation assigned following the grant of service connection for his disability. In Dingess, the Court also held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer necessary because the purpose that the notice is intended to serve has been fulfilled. Id, at 490-91. Therefore, regardless of whether the notice that the Veteran was provided with before service connection was granted was legally sufficient, the Board finds that VA's duty to notify in this case has been satisfied. Moreover, the Board finds that even if VA had an obligation to provide the Veteran with 38 U.S.C.A. § 5103(a) notice and failed to do so before first adjudicating his claim, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the December 2007 VCAA letter as well as the rating decision, statement of the case, and supplemental statement of the case, and the Veteran has not asserted that he was prejudiced by any lack of notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the report associated with the VA examination, along with VA and private treatment records that included an examination completed by the Veteran's private physician. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was provided with VA examinations in June 2008 and May 2010. The Board finds that the May 2010 examination is thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a medical history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Moreover, neither the Veteran nor his representative have objected to the adequacy of the examination. The Veteran did object to the adequacy of the June 2008 examination in a handwritten note attached to his Form 9 in February 2010. However, since another examination was provided without any further objection as to adequacy and the May 2010 examination is adequate as described above, the claims can be considered on the merits. For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate rating for distinct periods of time is required (known as staged ratings). See Fenderson, 12 Vet. App. at 126. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's degenerative arthritis of the cervical spine is currently rated under 38 C.F.R. § 4.71a, DC 5242 (2013) which is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The rating criteria for DC 5242 are as follows: Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the 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 warrants a 10 percent rating. 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 or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating; unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating; unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants the maximum 100 percent rating. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic 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 Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. The evidence in this case includes two medical examinations. The first was a VA examination conducted in June 2008. The report from that examination reflects that the Veteran did not experience any radiating pain on movement or muscle spasms. No evidence of tenderness or ankylosis of the cervical spine was found. The examiner also found that after repetitive use pain had the major functional impact and that the Veteran was not limited by fatigue, weakness, lack of endurance or incoordination. However, the report reflects that pain limits the joint function by zero additional degrees. The examiner also stated that the Veteran reported no functional impairment from this condition, although the report later indicates that the Veteran's neck pain interferes with activities such as golf and softball. Additionally, the Veteran's spine had a normal curvature and no signs of IVDS or nerve root involvement were observed. Neurological function was also found to be normal. Range of motion testing revealed that the Veteran had forward flexion of the cervical spine through 45 degrees. Complete range of motion was 340 degrees although it was noted that the Veteran experienced pain over the majority of this range. A second VA examination was conducted in May 2010. The examination report reveals that the Veteran continues to experience pain on motion and also noted that the Veteran experienced increased pain on repetition of movement. However, the report indicates that other than pain, the Veteran does not experience any additional limitations after three repetitions of movement. No neurological symptoms or ankylosis were observed or reported. The report also reflects that the Veteran does not experience any flare-ups, guarding, atrophy, fatigue, or weakness. No incapacitating episodes were reported. No scoliosis, kyphosis, or reverse lordosis was observed and the examiner noted that the Veteran's spinal symmetry, posture, and gait were normal on inspection. The examiner did note that the Veteran reported mild to moderate effects on his daily activities, including chores, shopping, exercise, sports, recreation, feeding, and dressing. Range of motion testing of the cervical spine showed that the Veteran had forward flexion of 40 degrees and complete range of motion of 300 degrees. The Veteran reported a history of muscle spasms as well. VA treatment notes from May 2005 to February 2013 do not reference any incapacitating episodes or hospitalizations for the Veteran's degenerative arthritis of the cervical spine. Also, VA treatment records from February 2013 show no regular medication was prescribed for the Veteran's degenerative arthritis of the cervical spine. VA treatment records do reflect that medication for high blood pressure, cholesterol, and the Veteran's prostate were prescribed. The evidence in this case supports a finding that the Veteran's degenerative arthritis of the cervical spine more closely approximates a disability rating of 20 percent for the entire period on appeal. The Board notes that the May 2010 VA examiner specifically addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's range of motion of the cervical spine was not found to be additionally limited by increased pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use. 38 C.F.R. §§ 4.40, 4.45. The examiner noted additional pain during his evaluation, but did not find any additional limitation of motion on repetition. While the May 2010 report reflects that the Veteran does not demonstrate any increased limitation of motion on repetition, the report does reflect that the Veteran's neck pain has a mild to moderate effect on his daily activities, such as eating and dressing. These impairments constitute functional limitations of the Veteran's cervical spine. The Veteran is competent to report how his cervical spine pain affects his daily activities and he has done so credibly. As such, the Board finds that the evidence is in relative equipoise and resolving all doubt in the Veteran's favor, an initial 20 percent disability rating is warranted for degenerative arthritis of the cervical spine. However, the evidence in this case does not support a finding that the Veteran's degenerative arthritis of the cervical spine has manifested to a degree warranting a disability rating exceeding 20 percent. As described, the evidence demonstrates that the Veteran experiences forward flexion of the cervical spine in excess of 30 degrees and complete range of motion of the cervical spine in excess of 170 degrees. No ankylosis of the Veteran's spine has been reported at any time and the May 2010 VA examination report indicates that the Veteran does not experience any increased limitation of motion on repetition. As discussed, the Veteran does experience some functional limitation in his daily activities. However, he reported that these activities are only mildly to moderately effected by his cervical spine disability. By comparison, a 30 percent rating would require forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine, both significant limitations. Moreover, while the June 2008 examination report reflects that the Veteran's function of the spine is additionally limited by pain following repetitive use, the examiner stated that the additional limitation was 0 degrees. The examiner also stated that the Veteran did not report any functional limitations but then noted that the Veteran's neck pain limited his daily activities such as his ability to play golf or softball. Based on the inconsistencies contained in the 2008 examination report, the Board affords it little probative weight. As such, the Board finds that the Veteran's clinical picture more closely approximates a disability rating of 20 percent. The Board also finds that a higher disability rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The record is silent regarding any incapacitating episodes. The Veteran does not assert that he has had at least 4 weeks of incapacitating episodes and the record does not indicate that the Veteran had any incapacitating episodes. Additionally, the June 2008 examiners found no evidence of IVDS and in May 2010 the examiner noted no history of incapacitating episodes. The Board has also considered the application of neurological diagnostic codes for any neurologic abnormalities. However, the evidence in this case does not indicate that the Veteran experiences any neurological problems. Both examination reports reveal normal neurological function and the Veteran has not asserted that he experiences any neurological abnormalities. As such, no additional diagnostic codes for neurological abnormalities are applicable. As described, the medical evidence in this case demonstrates that a schedular rating of 20 percent, but not higher, is warranted for the Veteran's degenerative arthritis of the cervical spine during the entire course of his appeal. Therefore there is no basis for a staged rating. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where the rating schedule is found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. 38 C.F.R. § 3.321(b)(1) (related factors include marked interference with employment and frequent periods of hospitalization). See id. 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 evaluations for the service-connected disability are 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. In addition, the Veteran does not exhibit other related factors such as those provided by the regulation as governing norms. The record does not show that the Veteran has required frequent hospitalizations, or any hospitalization, for his degenerative arthritis of the cervical spine. It does not appear from the record that he has ever been hospitalized post service for his degenerative arthritis of the cervical spine. At his examinations, the Veteran has reported recurring pain and has described the pain. While the examiners noted pain throughout motion, the Veteran's gait remained normal and his range of motion was near normal. He had no additional limitations with repetitive use and no objectively found fatigue, incoordination, lack of endurance or weakness. He had no incapacitating episodes, flare-ups of pain, or neurological abnormalities. There is no evidence in the VA or private medical records of an exceptional or unusual clinical picture. ORDER Entitlement to an initial disability rating of 20 percent, but not higher, for degenerative arthritis of the cervical spine is granted. REMAND The Veteran has claimed that he is unable to work due to his service connected degenerative arthritis of the cervical spine. Specifically, in an April 2013 statement, the Veteran asserts that he has not worked in 4 years and should be considered unemployable. Furthermore, the May 2010 VA examination report reflects that while the Veteran has retired as of 2008 due to age eligibility or duration of work, his degenerative arthritis of the cervical spine also has a significant effect on his usual occupation. The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim is not separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2013). The Veteran currently is service-connected for PTSD, evaluated as 50 percent disabling, degenerative arthritis of the cervical spine, evaluated as 20 percent disabling, tinnitus, evaluated as 10 percent disabling, and bilateral hearing loss, evaluated as 0 percent disabling. The Veteran's combined disability rating is currently 60 percent. The Board notes that the Veteran currently does not meet the schedular criteria for a TDIU. However, TDIU can also be granted on an extraschedular basis. 38 C.F.R. § 4.16(b) (2013). The issue of whether or not the Veteran is unemployable due to his service connected disabilities has been reasonably raised by the record in the 2010 VA examination and 2013 lay statement. However, the record is insufficient for the Board to make a determination as to TDIU. Thus, remand is required. At the onset, the RO should determine whether the Veteran is currently working. Then, a VA examination may be necessary to address the extent to which the Veteran's service connected disabilities affects his ability to obtain and maintain substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Send VCAA notice regarding the Veteran's claim for TDIU. 2. Obtain for inclusion in the claims folder complete private treatment records and VA clinical records since February 2013, involving treatment relating to any and all of the Veteran's service-connected disabilities. A copy of any letter sent to any private providers, and any reply, including all records obtained, should be included in the claims file. If the RO/AMC is unable to obtain these records, then it must notify the Veteran in writing and provide him an opportunity to respond. 3. The RO/AMC should contact the Veteran to determine if he is currently employed. A determination of his current employment status must be made and entered into the claims file. 4. After the above is accomplished, and if, and only if, the RO/AMC determines that the Veteran is not substantially and gainfully employed, then the AMC/RO should schedule the Veteran for a VA examination. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All necessary tests should be conducted and the examiner is requested to review all pertinent records associated with the claims file. Thereafter, the examiner should opine as to the impact of the Veteran's service connected disabilities on his ability to work. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service- connected disabilities, without consideration of his non-service-connected disabilities and without regard to his age, render him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 5. If, and only if the RO/AMC determines that the Veteran is not substantially and gainfully employed and an examination was conducted, refer the claim to the Director of Compensation and Pension for consideration for extraschedular entitlement to TDIU. 6. After completion of the above and any other development the RO/AMC should deem necessary, the RO should review the expanded record adjudicate the Veteran's claim for entitlement to TDIU, based on all of the evidence of record, including that received into the record since preparation of the most recent supplemental statement of the case. The Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs