Citation Nr: 1340046 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-32 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating than 10 percent for degenerative disease of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1976. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent rating for degenerative disc disease, cervical spine, with history of fibromyositis, neck and shoulders (claimed as shoulder and neck condition). In September 2010, the Board remanded this case for a hearing. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2011; a transcript of that hearing is associated with the claims file. In August 2011 and April 2013, the Board remanded this case for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to a separate compensable rating for left shoulder pain associated with the Veteran's service connected degenerative disease of the cervical spine has been raised by the record, specifically by the Veteran's continued complaints of left shoulder pain, the painful motion noted at the time of the February 2008 VA examination, and the limitation of external and internal rotation noted on the February 2008 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the appeals period, the Veteran's cervical spine disability has been characterized by pain, a noncompensable level of limitation of motion, and muscle spasm that did not result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The schedular criteria for a disability rating higher than 10 percent for degenerative disease of the cervical spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.71a, Diagnostic Code (DC) 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in February 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's September 2010 remand, VA scheduled the Veteran for the April 2011 hearing. In compliance with the Board's August 2011 remand, VA sought and obtained additional VA treatment records and provided the Veteran with a medical examination in October 2011. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. Additionally, in compliance with the Board's April 2013 remand, VA again obtained additional VA outpatient treatment records, including earlier records from the VA Medical Center in Tampa. Thus VA has complied with the September 2010, August 2011, and April 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board recognizes that the Veteran has not been afforded a VA examination since October 2011, as noted by the Veteran's representative in October 2013 Informal Hearing Presentation. The record does not show and neither the Veteran nor his representative have alleged that the Veteran's symptoms have gotten worse since the October 2011 VA examination. VA's Office of General Counsel (OGC) has determined that the Board is not required to remand an appealed disability benefits claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (Apr. 7, 1995). Such examination is adequate for purposes of the Board's determination unless the Veteran asserts that the disability in question has undergone an increase in severity since the time of the examination. Id. Again, the Veteran has not alleged at any time since this examination a worsening of his disability or asserted that this examination was in any way inadequate. As such, a new examination is not necessary. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for degenerative disease of the cervical spine with a history of fibromyositis neck and shoulder in a February 1977 rating decision. At that time, this disability was rated 10 percent disabling, effective October 1, 1974. The Veteran file a claim for an increased evaluation in December 2007. This claim resulted in the April 2008 rating decision at issue. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. 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). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code (DC) 5003, degenerative arthritis established by x-ray findings is rated either based on the limitation of motion of the affected joint or based on x-ray findings. 38 C.F.R. § 4.471a. Ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003, Note 1. When there is no limitation of motion of the specific joint involved a 10 percent evaluation is for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is available for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. When there is some objectively confirmed limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Id. When there is compensable (10 percent or higher) limitation of motion of the specific joint affected, that joint should be evaluated under the appropriate diagnostic codes for limitation of motion of that specific joint. Id. Limitation of motion of the cervical spine is are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5242. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or 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. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability 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. 38 C.F.R. § 4.71a, DC 5242. A 20 percent disability rating 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 or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Normal ranges of motion of the cervical spine are flexion from 0 degrees to 45 degrees, extension from 0 degrees to 45 degrees, lateral flexion 0 degrees to 45 degrees bilaterally, and lateral rotation from 0 degrees to 80 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. 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 United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is 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, to 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 Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran's cervical spine arthritis has been confirmed by x-ray evidence both prior to and during the appeals period. Throughout the appeals period, the Veteran's degenerative disease of the cervical spine has been characterized by pain, spasms, and limitation of motion. See generally, VA treatment records, private treatment records, VA examinations, the Veteran's statements. This limitation of flexion, however, has not been recorded as 30 degrees or less. See February 2008 VA examination, October 2011 VA examination. Likewise, the combined range of motion of the cervical spine has been recorded as 280 degrees at the time of the February 2008 VA examination and 300 degrees at the time of the October 2011 VA examination. While muscle spasms have been noted at times, specifically left-sided trapezial muscle spasm, there is no evidence of abnormal gait or spine contour as a result of spasms. See February 2008 VA examination. The Veteran has sought private treatment for his muscle spasms. See generally, private chiropractor treatment records dated from April 25, 1998, to August 19, 2011. The most recent October 2011 VA examination found no muscle spasms. The medical evidence of record specifically denies the presence of ankylosis, favorable or unfavorable. See February 2008 VA examination, October 2011 VA examination. Likewise, there is no history of physician-prescribed bed rest. See generally, VA treatment records, VA examinations. Based on the above, the Veteran's degenerative disease of the cervical spine most nearly approximates the criteria for the current 10 percent evaluation. The x-ray evidence confirms arthritis of the cervical spine. The Veteran is not service connected for arthritis of any other major joint or minor joint group. Thus a 20 percent rating under DC 5003 is not warranted. See 38 C.F.R. § 4.71a. Likewise, although pain and some limitation of motion are noted, a higher rating based on limitation of motion is not warranted. The Veteran's limitation of flexion has not been shown to be 30 degrees or less and his combined range of motion of the cervical spine has been found to be consistently well above 170 degrees, even after repetitive testing. Thus, the criteria for a 20 percent rating based on limitation of motion are not met. See 38 C.F.R. § 4.71a, DC 5242. The record also shows muscle spasms, but these muscle spasms did not result in an abnormal gait or abnormal spinal contour as required for a higher rating. See id. Finally, a higher evaluation is not available under Diagnostic Code 5243 as the record does not show any incapacitating episodes. See 38 C.F.R. § 4.71a , DC 5243, Note (1)(defining an incapacitating episode as 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). Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating higher than 10 percent for the Veteran's degenerative disease of the cervical spine. 38 C.F.R. § 4.7. The Board has also considered whether separate compensation is warranted for neurological symptoms. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. In this case, the February 2008 and October 2011 VA examinations found no sensory impairment. Likewise, the evidence does not show any other neurologic abnormalities, such as bladder or bowel dysfunction. The Veteran has reported radiating pain. The October 2011 VA examination, however, specifically found no evidence of radiculopathy. As no neurologic abnormalities have been associated with the Veteran's degenerative disease of the cervical spine, separate ratings for such are not warranted. See 38 C.F.R. § 4.71a, Note (1). 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). 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 evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as ankylosis or associated neurological abnormalities, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER A rating than 10 percent for degenerative disease of the cervical spine is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs