Citation Nr: 1342990 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 09-23 455A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to April 2005, with periods of reserve service as well, including 23 years of prior inactive service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied service connection for degenerative changes of the lumbar spine; and a May 2009 decision which granted service connection for degenerative disc disease of the cervical spine and assigned a 10 percent disability rating. In her May 2011 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). A hearing was scheduled for April 2013, but the Veteran failed to appear. As the Board has received no request for a postponement or good cause for the Veteran's failure to report, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). The Board notes initially that service connection for bilateral radiculopathy of the upper extremities has been granted since the Veteran's most recent VA examination in October 2012. FINDINGS OF FACT 1. The Veteran suffered a back strain during a period of active duty for training (ACDUTRA) in May 1979. 2. The Veteran was diagnosed with lumbar radiculitis in April 2003, prior to her entry onto active duty. 3. The evidence does not link current lumbar spine disability to an in-service disease or injury. 4. A lumbar spine disability did not increase in severity beyond its natural progression during the Veteran's period of active service. 5. The preponderance of the evidence of record shows that the Veteran's service-connected degenerative disc disease of the cervical spine is not productive of forward flexion to 30 degrees or less; combined range of motion of the cervical spine to 170 degrees or less; 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. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations delineate VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In cases where a Veteran is seeking service connection, the VCAA requires that the VA provides notice of all five elements necessary to substantiate a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that VA has satisfied its duty to notify the Veteran. A December 2005 letter, sent prior to the initial unfavorable decision issued in March 2007, advised the Veteran of the evidence and information necessary to substantiate her claim and to establish a disability rating and an effective date. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits.) The same letter advised the Veteran of her and VA's respective responsibilities in obtaining evidence and information. The Veteran's claim for a higher rating arises from her disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of Service Treatment Records (STRs) and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's STRs, VA treatment records, private treatment records and VA examination reports have been obtained and considered. The Veteran has not identified any additional outstanding records that have not been obtained. The Veteran underwent VA examinations in December 2005 and October 2012, the most recent of which included a physical assessment, a review of the claims file and clear conclusions with supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims. VA's duty to assist the Veteran has been satisfied. II. Service Connection Claim A. Law Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See 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 or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). B. Analysis In May 1979 the Veteran was treated for a low back strain while on ACDUTRA. The Veteran was diagnosed with lumbar radiculitis in April 2003 when an MRI of the Veteran's lumbar spine revealed disc signal loss and slight height loss at L4-5, and some disc bulging at L5-S1, without HNP or nerve compression. The MRI was conducted on April 10, 2003, before the Veteran entered active duty service on April 21, 2003. Private medical reports from June 2004 indicate that the Veteran suffered low back pain after an accident while on active duty in December 2003. In July 2005 the Veteran was diagnosed with degenerative changes of the lower lumbar spine with facet joints sclerosis. An October 2012 VA examiner opined that her current back condition was not related to or caused by her 1979 in-service injury. In support of this conclusion the examiner noted that the back symptoms in service show sprain only and that there are no chronic residuals from the event based on STRs or subsequent medical records. The examiner further noted that back sprain and disc disease are different and separate conditions and that there is no imaging evidence of the Veteran's current condition before 2003, over 23 years after the back strain suffered on ACDUTRA. Addressing the issue of whether her pre-service lumbar spine disability was aggravated by her 2003 - 2005 active duty service, the October 2012 VA examination report concluded that it was less likely than not to be the case. He based this on the symptoms and treatment reflected in the record. There is no medical evidence of record suggesting a nexus between the current disability and the incident in 1979. Indeed, the Veteran has not submitted any lay statements to support a possible nexus. The Board thus does find a nexus between the Veteran's 1979 injury and her current lumbar spine condition. The Board also finds the Veteran's lumbar condition existed prior to her entrance onto active duty. The October 2012 examiner noted that the April 10, 2003 MRI showed disc disease that had already been present for a few years before the Veteran entered active duty. Addressing the issue of whether the Veteran's active duty service aggravated a preexisting condition, the Board places a high probative value on the October 2012 VA examination report. According to the examiner, the progression of the Veteran's condition has been tracked by objective imaging results since 2003 and the pattern of the condition has been consistent with the natural progression of the disease. The examiner's conclusion that the Veteran's active duty service did not aggravate her preexisting lumbar condition is reasoned and supported by the evidence of record. The Board has considered the Veteran's lay statements concerning her service and her current back problems. Although the Veteran as a layperson is competent to describe her injuries in service and indicate that she has back pain, she is not competent to diagnose the underlying pathology causing the back pain, nor is she competent to address the medically complex question of the etiology of the underlying pathology. Similarly, whether symptoms represent an increase in severity beyond natural progression is beyond her competence. Accordingly, her opinion is not accorded probative value. For the reasons set forth above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability was incurred in or aggravated by service. Accordingly, service connection is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). III. Increased Initial Rating A. Law Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. 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. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's degenerative disc disease of the cervical spine is rated at 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Pursuant to this formula, a 10 percent rating is warranted if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, there is 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 when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when muscle spasm or guarding is 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 where forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine and a 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). B. Analysis As noted above, the Veteran's degenerative disc disease of the cervical spine is rated at 10 percent. The Veteran contends that a higher rating is warranted. A November 2003 MRI of the Veteran's cervical spine showed extensive spurring and disc/osteophyte complexes at C3-4 and C4-5, but otherwise intact with no cord abnormality or syrinx formation. A June 2004 private examination noted a neck injury in December 2003 and found extensive spurring and disc osteophyte complex at C3, C4. The examiner noted that the Veteran had occasional neck pain, but no ataxic gait or loss of strength and diagnosed the Veteran with cervical spondylosis without myelopathy. December 2004 physical therapy records indicate the Veteran was no longer experiencing pain in her neck. At a December 2005 VA examination, the Veteran stated that her neck pain was roughly 4/10 on the pain scale with no particular flare ups or incapacitation. The Veteran also reported occasional right arm pain. Range of motion (ROM) tests on the Veteran's cervical spine showed her forward flexion and extension to be from 0 to 45 degrees each, her left lateral flexion from 0 to 40 degrees, her right lateral flexion from 0 to 35 degrees, her right lateral rotation from 0 to 70 degrees and her left lateral rotation from 0 to 75 degrees. There was no further loss of ROM after repetitive use due to pain, weakness, fatigue or incoordination. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine with osteophytes and neurological changes indicating impact on cord, mild to moderate. At an October 2012 VA examination, the Veteran reported severe neck pain 3 to 4 times per month lasting several hours to days without incapacitating episodes. The Veteran's cervical spine ROM testing revealed forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 35 degrees, left lateral flexion to 35 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees with no evidence of pain motion and no limitation of motion or pain upon repetition. The examiner noted no guarding or muscle spasms, no loss of strength or muscle atrophy, and normal reflexes. The examination report also contained evidence of moderate intermittent radicular pain and mild paresthesias in both upper extremities involving the C5/C6 nerve roots. No other neurologic abnormalities or functional limitations were reported. After reviewing the evidence of record the Board finds that the preponderance of the evidence shows that, even considering the Veteran's pain and corresponding functional impairment, the orthopedic component of the Veteran's neck disability has been appropriately rated at 10 percent. The Veteran is capable of forward flexion to 45 degrees with no objective evidence of pain on motion without additional limitation of motion after repetition. The Veteran's combined range of motion of the cervical spine is 240 degrees without additional limitation of motion after repetition. Although the Board does not doubt that the Veteran experiences pain, the level of functional impairment as shown by the evidence does not support an evaluation in excess of 10 percent. A higher rating is not warranted under the general rating formula because the Veteran does not meet requirements for a 20 percent rating under 4.71a, namely her range of motion is not within the scheduler criteria for a 20 percent rating and there are no findings in the record of muscle spasms or guarding as described above. The General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). The medical evidence of record along with the Veteran's lay statements indicate mild to moderate radicular pain and mild loss of sensation in the Veteran's upper extremities. As indicated above, service connection for bilateral radiculopathy of the upper extremities has been granted and a 20 percent rating has been assigned for each arm under Diagnostic Code 8510. As the Veteran has not expressed disagreement with these ratings, they are not currently under consideration. For these reasons the Board finds that the preponderance of the evidence is against an assignment of a disability rating in excess of 10 percent for degenerative disc disease of the cervical spine. In light of the Board's finding that the Veteran is not entitled to a higher rating, there is no possibility of applying a staged rating in the instant case. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the orthopedic and neurological manifestations of the Veteran's cervical spine disability, as her disability is productive of pain, limitation of motion, and loss of sensation in her upper extremities, manifestations that are contemplated in the relevant rating criteria. Although the October 2012 examination noted excess fatigueability, there do not appear to be any demonstrable effects on the Veteran's overall functionality to the extent of creating an exceptional or unusual disability picture. Thus, the Board finds that the schedular rating criteria are adequate to evaluate her cervical spine disability and referral for consideration of extraschedular rating is not warranted. The Veteran has made no assertion that her disabilities make her unemployable Therefore, the Board need not discuss the Veteran's entitlement to a total disability rating for individual unemployability, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Entitlement to service connection for a lumbar spine disability is denied. An initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs