Citation Nr: 1340064 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-11 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 20 percent for cervical spondylosis, status post fusion, excluding the period from August 8, 2008, through September 30, 2008, during which time a temporary total (100 percent) evaluation was in effect under 38 C.F.R. §4.30. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from April 1976 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in August 2011. A transcript of the hearing has been associated with the claims file. The Board issued a decision denying this appeal in February 2012. In September 2012, the United States Court of Appeals for Veterans Claims (Court) remanded the issue to the Board. Pursuant to the Joint Motion for Remand (JMR), the Board remanded the claim in April 2013. FINDINGS OF FACT 1. Prior to August 24, 2013, the Veteran's service-connected cervical spondylosis, status post fusion had not been productive of limited motion to 15 degrees of flexion or less or disability comparable thereto, and there is also no showing of ankylosis of the spine or periods of bed rest prescribed by a physician. 2. Effective August 24, 2013, the Veteran's service-connected cervical spondylosis, status post fusion is manifested by limitation of motion to 20 degrees of forward flexion, with objective evidence of painful motion beginning at 15 degrees of flexion. CONCLUSIONS OF LAW 1. Prior to August 24, 2013, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected cervical spondylosis, status post fusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235-5243 (2013). 2. Effective August 24, 2013, the criteria for entitlement to a disability evaluation of 30 percent, but no higher, for the Veteran's service-connected cervical spondylosis, status post fusion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In an October 2008 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in January 2009 and August 2013 which are fully adequate. The reports fully addressed the rating criteria and indicated that the examiner had reviewed the claims file. The duties to notify and to assist have been met. Further regarding the duty to assist, 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 and sought information as to treatment to determine whether all relevant records had been obtained. 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. The Board finds that the RO has complied with the instructions of the April 2013 Remand. The RO provided the Veteran with two VA examinations, dated in May 2013 and August 2013. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 41. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year prior to his September 2008 claim. In making all determinations, the Board must also fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. Disabilities of the cervical spine are evaluated under the schedular rating criteria of the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5243, under 38 C.F.R. § 4.71a. The diagnostic criteria are as follows: 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 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. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. The highest rating, 100 percent rating, is assigned for unfavorable ankylosis of entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2). Further, 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Disabilities of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. General Rating Formula, Note (6). Intervertebral disc syndrome (IVDS), under Diagnostic Code 5243, is to be evaluated either under the General Rating Formula (above), or, alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. The schedular criteria for incapacitating episodes are as follows: A 10 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating is assigned intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Incapacitating Episodes Formula, Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Incapacitating Episodes Formula, Note (2). Degenerative arthritis 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 (Diagnostic Code 5200 etc.). When however, 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §4.40. Moreover, with any form of arthritis, 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. The 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Therefore, when evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, take into consideration functional loss of a joint due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 (regarding arthritis) are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Importantly, the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in under 38 C.F.R. § 4.40, before a compensable rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (U.S. Vet. App. Aug. 23, 2011). The Veteran has been assigned a temporary total (100 percent) evaluation under 38 C.F.R. § 4.30, for the period from August 8, 2008, through September 30, 2008, based on convalescence after this surgery. This issue is not in dispute. Otherwise, a 20 percent disability rating has been assigned throughout the entire period of appellate review. As noted, the next-higher rating of 30 percent may be warranted under the General Rating Formula for Diseases and Injuries of the Spine if there is either (a) flexion limited to 15 degrees or (b) favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Prior to August 24, 2013, neither such symptom was shown in this case, as will be discussed below. A VA examination in January 2009 demonstrated flexion to 30 degrees, reduced to 20 degrees due to pain and weakness after repetitive motion. Moreover, the VA examination failed to show that the disability was manifested by favorable ankylosis of the entire cervical spine. To the contrary, the examination demonstrated that the Veteran retained motion, however limited. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5); see also Colayong v. West, 12 Vet. App. 524, 528 (1999) (defining ankylosis as immobility and consolidation of a joint due to disease, injury or surgical procedure). Similarly, a second VA examination, performed in February 2011, showed flexion to 40 degrees, limited to 30 degrees due to pain upon repetitive motion. The Board acknowledges that the examination report was found to be inadequate because the examiner failed to use a goniometer. Pursuant to the JMR, the Board remanded the claim for another VA examination. The February 2011 examiner re-examined the Veteran in May 2013. He reviewed the claims file in conjunction with the examination. The Veteran reported that overall he was doing well except for limited range of motion on side turning 10-15 degrees, and extension 10-15 degrees. Regarding flexion, the Veteran was able to come within 1 inch of touching his chin to his chest. The examiner noted that the C3-C4 disc was close to needing surgery. There was decreased range of motion in the neck, particularly in side turning. However, he noted that flexion was much better. The examiner provided a June 2013 addendum in which he stated that "we do not have, and are not provided with, goniometers." He noted that neurosurgery experts do not give weight to the range of motion with regard to their assessment of degree of disability because it can too easily be faked. The Veteran testified at the August 2011 Board hearing that his symptoms prevented him from doing some of activities he previously enjoyed, such as skiing, riding his motorcycle, and parachuting. He also described being unable to interact with his grandchildren as fully as he used to. Also, he required a step ladder to reach things overhead, and he had more problems with sleep. Finally, he testified that he had stopped working as a teacher due to a decreased ability to turn his neck. This evidence, even when considering the Veteran's additional functional limitations due to the DeLuca factors, fails to show (prior to August 24, 2013) that his disability picture more nearly approximated the criteria for a 30 percent rating. Additionally, a higher evaluation is not warranted on the basis of IVDS with incapacitating episodes, because the evidence shows that there were no episodes of bed rest prescribed by a physician (exclusive of the convalescent period following the August 2008 surgery). For these reasons, a rating higher than the presently-assigned 20 percent is not warranted. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243; Mitchell, 25 Vet. App. at 33, 43; DeLuca, 8 Vet. App. 202. Effective August 24, 2013 The Veteran underwent another VA examination that took place on August 24, 2013. The examiner reviewed the claims file in conjunction with the examination. Upon examination, the Veteran achieved 20 degrees of forward flexion. However, the examiner noted that there was objective evidence of painful motion beginning at 15 degrees of flexion. After repetitive testing, the Veteran was still able to achieve 20 degrees of forward flexion. Consequently, the examiner found that the Veteran did not have any additional loss of motion following repetitive-use testing. Once again, the Board notes that in order to warrant a rating in excess of 20 percent, the Veteran's disability must be manifested by (a) flexion limited to 15 degrees or (b) favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Although the Veteran was able to achieve forward flexion to 20 degrees, the Board notes that painful motion began at 15 degrees. Consequently, the Board finds that the Veteran's ability to function without pain ends at 15 degrees of forward flexion. The Board finds that this level of disability more closely approximates to the criteria for a 30 percent rating. Moreover, despite the comments of the VA examiner in the June 2013, suggesting that goniometers are not always used in conducting an examination, the Board finds that, given that 38 C.F.R. § 4.46 notes such to be "indispensable" component of an examination, it must be assumed that, unless the evidence shows otherwise, such were used in any given examination. Therefore, the Board accepts that the August 2013 examination serving as a basis for a higher evaluation was conducted with a goniometer. Indeed, the Veteran has not alleged otherwise. In order to warrant a rating in excess of 30 percent, the Veteran's disability must be manifested by unfavorable ankylosis of the entire cervical spine. There is no medical evidence of unfavorable ankylosis, nor has the Veteran made such a contention. To the contrary, in the Veteran's October 2013 Informal Hearing Presentation, he specifically requested a 30 percent rating (which the Board has now granted). (CONTINUED ON NEXT PAGE) ORDER Prior to August 24, 2013, an evaluation in excess of 20 percent for cervical spondylosis, status post fusion, exclusive of the period from August 8,2008, through September 30, 2008, during which time a temporary total (100 percent) evaluation was in effect under 38 C.F.R. § 4.30, is denied. Effective August 24, 2013, an evaluation in excess of 30 percent, but no higher, for the Veteran's service-connected cervical spondylosis, status post fusion is granted. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs