Citation Nr: 1453871 Decision Date: 12/08/14 Archive Date: 12/16/14 DOCKET NO. 12-08 310A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, C4-5 from July 1, 2009 through June 29, 2011. 2. Entitlement to an evaluation in excess of 30 percent for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, C4-5 after June 29, 2011. 3. Entitlement to service connection for right ankle disability. ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO. In an October 2009 rating decision, the RO granted a temporary total rating based on the need for convalescence following a surgical procedure of the Veteran's service-connected intervertebral disk disease. As such, the Board's adjudication of the service-connected intervertebral disk disease will not include discussion of the appropriate disability rating during the period from April 13, 2009 to July 1, 2009 since the Veteran is already in receipt of a 100 percent evaluation for that period. See AB v. Brown, 6 Vet. App. 35 (1993). In an August 2011 rating decision, the RO increase the rating for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, to 30 percent disabling effective June 29, 2011. This increase during the appeal did not constitute a full grant of the benefit sought. Therefore, the Veteran's claim for an increased evaluation for the intervertebral disk disease remains on appeal. Id. In her VA form 9 dated November 2009, the Veteran requested a hearing before the Board. In March 2012, she withdrew her request for a hearing. The Board has reviewed the electronic claims file in rendering this decision. FINDINGS OF FACT 1. For the period of July 1, 2009 through June 29, 2011, the cervical spine functional flexion is greater than 15 degrees. The spine is not manifested by favorable ankylosis of the entire cervical spine and she does not have incapacitating episodes totaling at least four weeks during the past 12 months. 2. For the period beginning June 29, 2011, the cervical spine is not manifested by unfavorable ankylosis and she does not have incapacitating episodes totaling at least four weeks during the past 12 months. 3. The Veteran does not have a current right ankle disability. CONCLUSIONS OF LAW 1. For the period of July 1, 2009 through June 29, 2011, the criteria for a rating higher than 20 percent for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71, 4.71a including Diagnostic Code 5241 (2014). 2. For the period beginning June 29, 2011, the criteria for a rating higher than 30 percent for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71, 4.71a including Diagnostic Code 5241 (2014). 3. Right ankle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014); 38 C.F.R. § 3.159 (2014). The RO provided the required notice in a letter sent to the Veteran in July 2011. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The RO has associated the Veteran's service treatment records, VA treatment records, and private treatment records with the claims file. VA examinations dated in September 2009, August 2011, May 2012 addressed the severity of the Veteran's intervertebral disk disease, status post anterior cervical fusion with allograft and plate. VA examinations dated in February 2004 and August 2011 addressed the Veteran's right ankle. The examinations of record considered the Veteran's history and set forth objective findings necessary for adjudication. The examinations are adequate and further examination is not needed. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Evaluation Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran has been assigned staged ratings. We agree that there has been a change in the status of the Veteran's disability and a staged rating is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 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. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the Veteran contends that she is entitled to a higher rating for her service-connected intervertebral disk disease, status post anterior cervical fusion with allograft and plate, under the provisions of 38 C.F.R. § 4.71a, DCs 5235 to 5243. The regulations provide a General Rating Formula for Disease and Injuries of the Spine that is applicable to Coded 5235 to 5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 (4): Round each range of motion measurement to the nearest five degrees. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 under 38 C.F.R. § 4.25. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. For the period beginning July 1, 2009 through June 29, 2011 the cervical spine is rated 20 percent disabling. This contemplates the Veteran's cervical spine forward flexion to 25 degrees. In order to warrant a higher evaluation there must be the functional equivalent of forward flexion of the cervical spine of 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes totaling at least four weeks during the past 12 months Private treatment records indicate that the Veteran was admitted on April 8, 2009 and underwent an anterior cervical fusion with allograft and plate, C4-5 on April 8, 2009 for cervical disk disease C4-5. She was advised not to return to work for eight weeks. At the VA examination in September 2009, the examiner found that the range of motion of the cervical spine was that of forward flexion performed to 25 degrees, extension performed to 20 degrees, lateral flexion bilaterally performed to 20 degrees, and lateral rotation bilaterally performed to 20 degrees. The Veteran was noted to have no additional restriction of the range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups and following three repetitive ranges of motion assessments. The examiner diagnosed intervertebral disk disease and reported that the Veteran had not been bedridden except for the post-operative period after surgery, which would have been approximately ten days in the last one year. Thus, on this record, for the period of July 1, 2009 through June 29, 2011, the service-connected cervical spine disability picture is not productive of forward flexion of the cervical spine of 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes totaling at least four weeks during the past 12 months to warrant the assignment of a rating higher than 20 percent. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2014). Rather the more probative evidence established that flexion was capable of 25 degrees without decrease in function due to any Deluca factor. To the extent that there may have been prescribed bed rest, the examiner noted that it would have been less than 4 weeks. For the period beginning June 29, 2011, the cervical spine is rated 30 percent disabling. This contemplates the Veteran's cervical spine forward flexion to 15 degrees or less. In order to warrant a higher evaluation there must be unfavorable ankylosis or incapacitating episodes totaling at least four weeks during the past 12 months In June 2011, the Veteran submitted private medical records in support of her claim for an increase rating. At the VA examination in August 2011, the examiner found that the range of motion of the cervical spine was that of forward flexion performed to 5 degrees, extension performed to 5 degrees, and bilateral lateral rotation performed to 20 degrees. Lateral flexion was not noted. The examiner did not note ankylosis of the cervical spine. The Veteran was noted to have no additional restriction of the range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups and following three repetitive ranges of motion assessments. The examiner diagnosed intervertebral disk disease and reported that there had not been medically enforced bed rest in the past 12 months. The Veteran was afforded another VA examination in May 2012. The examiner found that the range of motion of the cervical spine was that of forward flexion performed to 30 degrees, extension performed to 15 degrees, and bilateral lateral flexion performed to 25 degrees, and bilateral lateral rotation performed to 25 degrees. The Veteran was noted to have no additional restriction of the range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups and following three repetitive ranges of motion assessments. The Veteran reported she missed 16 days of work last year because of pain. The examiner did not note medically enforced bed rest in the past 12 months. Thus, on this record, for the period beginning June 29, 2011, the service-connected cervical spine disability picture is not productive of unfavorable ankylosis or incapacitating episodes totaling at least four weeks during the past 12 months to warrant the assignment of a rating higher than 30 percent. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2014). The Board notes we are cognizant of the Veteran's complaints of additional factors affecting functional impairment, such as pain on motion, weakened movement, excess fatigability, lost endurance, or incoordination, beyond the guarding of movements which have already been taken into consideration. See 38 C.F.R. §§ 4.40, 4.45 (2004), DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is competent to report such symptoms and limitations, and the Board finds her reports of symptomatology to be credible. The Board also notes that the lay statements of record detailing the Veteran's functional and occupational limitations due to her cervical disability to be competent and credible. Neither the lay nor medical evidence, however, unfavorable ankyloses or the required amount of incapacitating episodes. Although the Veteran reports cervical pain, such is considered in the current evaluation. See 38 C.F.R. § 4.59. In fact, the current evaluation contemplates motion limited to 15 degrees or less. Accordingly, the evidence is against a rating in excess of 20 percent for the cervical spine disability from July 1, 2009 through June 29, 2011 and a rating in excess of 30 percent for the cervical spine disability since June 29, 2011. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The manifestations of the cervical spine disability are fully contemplated by the schedular rating criteria. Specifically, the rating criteria address the Veteran's level of functional loss due to pain in terms of limitation of motion. Accordingly, referral for consideration of an extraschedular rating is not indicated. See Thun, 22 Vet. App. at 115-16. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2014). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's service treatment records show a contusion and sprain of the right ankle in 1983. The x-ray studies showed no fracture. The periodic examinations in November 1984, January 1989, and December 1982 disclosed that the Veteran's feet and lower extremities were normal. A medical record in May 2000 notes ankle pain but no diagnosis was provided. VA examination in February 2004 showed that the Veteran's right ankle had no swelling or deformity. Range of motion was 20 degrees of dorsiflexion, and 45 degrees of plantar flexion, with no pain. X-ray studies taken of the right ankle were normal. Subsequently, the Veteran submitted private treatment records dated in November 2010, which show she received treatment for her foot/ankle. During the examination, the Veteran reported the lateral aspect of the foot/ankle as the point of maximum tenderness. The examiner diagnosed sinus tarsi syndrome. The Veteran was afforded a VA examination in August 2011. The Veteran reported she had pain daily with no weakness, stiffness, instability, giving way, swelling, redness, or flare-ups, and she treats the pain with medication, no narcotics or steroid injections and she had no operations. The examination of the right ankle revealed no synovial thickening or fluid collection, no point tenderness or bony crepitus. The examination also showed the range of motion was normal with no additional limitation of motion or function loss due to any weakened movement, excessive fatigability, incoordination or painful motion upon repetitive use. The x-ray studies of the right ankle were normal with no evidence of an unstable ankle or evidence of arthritis. The examiner diagnosed a normal right ankle without traumatic arthritis and no evidence of a condition due to service as the ankle is normal, without arthritis and full functional use and range. In a letter dated September 2011, the Veteran's husband described her right ankle and foot pain. He stated that her right ankle and foot have given her severe continuous pain and discomfort for over 15 years. The Board has carefully considered the Veteran and her husband's contentions to the effect that service connection should be granted for a right ankle disability relative to reported injury in service. Service treatment records reflect that she was seen for a right ankle contusion/ sprain in 1983 and complained of ankle pain in May 2000. The Board finds that despite assertions of right ankle injury in service and continuing symptoms, the more probative and credible evidence establishes that the Veteran does not have current disability of the right ankle. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Although the private medical examiner reported sinus tarsi syndrome, he did not provide any clinical findings with respect to the right ankle. The record does not reflect any abnormal joint or musculoskeletal clinical findings pertaining to the right ankle. On VA examinations in 2004 and 2011, the Veteran's right ankle was found to be normal and without traumatic arthritis. The examiners found that there was no evidence of a condition due to service as the ankle is normal. The record reflects that to date, the Veteran has not presented any evidence of a right ankle disability except for her and her husband's statements to this effect. To the extent that there is a single report of sinus tarsi syndrome, such report is inconsistent with the examinations both before and after the report. Even if we were to accept that the report of sinus tarsi syndrome is a disability, there is no probative evidence of a relationship to service. The Board notes that the VA examination reports are more probative in this case to the current diagnosis of the Veteran, due to the examiners' medical training and experience in diagnosing medical conditions. The Board agrees with the Veteran that her service treatment records reflect a right ankle injury while in service, however, that is not the only necessary step in establishing service connection. As previously discussed, there is no evidence of a current or chronic disorder related to the Veteran's 1983 right ankle contusion/sprain, as such service connection cannot be granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER For the period of July 1, 2009 through June 29, 2011, an evaluation for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, C4-5 in excess of 20 percent is denied. For the period beginning June 29, 2011, an evaluation for intervertebral disk disease, status post anterior cervical fusion with allograft and plate, C4-5 in excess of 30 percent is denied. Service connection for a right ankle disability is denied. ____________________________________________ H. N. Schwartz Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs