Citation Nr: 1507784 Decision Date: 02/23/15 Archive Date: 02/26/15 DOCKET NO. 10-28 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for a C6-C7 herniated nucleus pulposus, C3-C4 and C4-C5 bulging discs, and cervical myositis. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserve, which included periods of active duty for training from June 1957 to December 1957, and from August 16, 1997 to August 17, 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2014). FINDING OF FACT The Veteran's service-connected C6-C7 herniated nucleus pulposus, C3-C4 and C4-C5 bulging discs, and cervical myositis is manifested by increased pain in the cervical area; forward flexion limited to 25 degrees, with objective evidence of pain beginning at 5 degrees; extension limited to 20 degrees, with objective evidence of pain beginning at 5 degrees; less movement than normal and pain on movement after repetitive use; localized tenderness; and pain to palpation for joints. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected C6-C7 herniated nucleus pulposus, C3-C4 and C4-C5 bulging discs, and cervical myositis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5237 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The RO's April 2009 letter advised the Veteran of the criteria for establishing an increased disability rating and informed him of the type of evidence necessary to establish an effective date. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As the Veteran has been afforded the opportunity to present pertinent evidence in support of his cervical spine disorder claim, the Board finds that the RO satisfied the notice requirements with respect to the increased disability evaluation issue on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records, post-service treatment records, and Social Security Administration medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In May 2009 and January 2014, the RO provided the Veteran with spine examinations to determine the nature and severity of his spine disorder. These examinations were performed by physicians who reviewed the Veteran's claims file and relevant medical records, examined the Veteran, and provided rationales for the medical opinions reached. The Board finds that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that these examinations were inadequate. There is no indication in the record that additional evidence relevant to the issue being addressed is available and not already part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2014). The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2014). The Veteran is seeking an increased rating for his service-connected cervical spine disorder, which was assigned a 30 percent evaluation under Diagnostic Codes 5243-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2014). Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 30 percent evaluation is warranted when forward flexion of the cervical spine is limited to 15 degrees or less; or, there is favorable ankyloses of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine, and a maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. If there is evidence of Intervertebral Disc Syndrome (IVDS), VA is directed to evaluate a cervical spine disorder under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V. 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. Id. At a VA examination in May 2009, the Veteran reported constant sharp pain, decreased motion, stiffness, and muscle spasms. After reviewing the medical records and examining the Veteran, the VA examiner found that forward flexion of the cervical spine was limited to 30 degrees and extension was limited to 21 degrees. The examiner found objective evidence of pain on active range of motion. The examiner then provided a diagnosis of bulging discs at C3-C4 and C4-C5, as well as a herniated disc at C6-C7 and neck pain. The examiner found no signs of cervical spine ankylosis, pain flare-ups, or intervertebral disc syndrome. However, the examiner opined that the Veteran's cervical spine disorder had a functional impact on his daily activities. The examiner indicated that the Veteran's neck pain would prevent the Veteran from doing chores and sports, that it had a severe impact on exercising, that it had a moderate impact on shopping, that it had a mild impact on recreation, traveling, bathing, dressing, and groom, and that it had no impact on feeding and toileting. In January 2014, the Veteran was afforded another comprehensive VA cervical spine examination. The VA examiner reviewed the claims file and examined the Veteran. The Veteran presented with increased pain in the cervical area and flare-ups impacting overhead activities. The examiner noted that forward flexion of the cervical spine was limited to 25 degrees, with objective evidence of pain manifesting at 5 degrees. The examiner also found extension limited to 20 degrees, with objective evidence of pain manifesting at 5 degrees; right lateral flexion limited to 25 degrees; left lateral flexion to 20 degrees; right lateral rotation to 40 degrees; and left lateral rotation to 40 degrees. The examiner found additional limitations in range of motion following repetitive-use testing, less movement than normal, pain on movement, localized tenderness and pain to palpation for joints, normal muscle strength, muscle spasms of the cervical spine not resulting in abnormal spine contours, and guarding of the cervical spine not resulting in abnormal spinal contours. The examiner found no signs of muscle atrophy, radiculopathy, ankyloses of the spine, or neurologic abnormalities. Moreover, the examiner found no evidence of intervertebral disc syndrome of the cervical spine with incapacitating episodes. After providing diagnoses of cervical strain, cervical spondylosis, and cervical disc herniation, the examiner opined that the Veteran's cervical spine disorder would not impact his ability to work. Based on a comprehensive review of the record, the Board finds that the Veteran's cervical spine disorder is adequately compensated by the assigned 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A higher evaluation for this appeal period is not warranted as there is no evidence of ankylosis of the entire cervical spine. Id. The Board has considered additional functional limitation due to factors such as pain and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014). While pain on movement and additional functional impairment of range of motion after repetitive use was indicated, the May 2009 VA examiner found no additional range of motion limitations after three repetitions, and the impact on daily activities was most severe for participation in exercise and sports but that he could still participate in general recreation. Moreover, the January 2014 VA examiner found 5/5 normal strength in all categories tested, no muscle atrophy, no muscle guarding or spasm resulting in abnormal spine contours, no signs of radicular pain or any other signs or symptoms due to radiculopathy, and no findings intervertebral disc syndrome. Finally, disability ratings are to be applied with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Rating Formula. Accordingly, a rating in excess of 30 percent is not warranted for additional functional loss. The Board further finds that separate ratings are not warranted for neurological impairment associated with the Veteran's cervical spine disorder for the entire rating period on appeal. Neither of the Veteran's VA examinations found any evidence of radicular pain or any other signs or symptoms due to radiculopathy, and the his treatment records during this period were also silent as to any neurological impairment. The Board has considered whether the Veteran's service-connected cervical spine disorder warrants a higher disability evaluation under the Formula for Rating IVDS Based on Incapacitating Episodes. However, evaluation under this formula is not for application because the May 2009 and January 2014 VA examiners found no evidence of intervertebral disc syndrome of the cervical spine, with incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As such, the currently assigned 30 percent evaluation under the General Rating Formula represents the greatest degree of impairment shown throughout the appeal period, and there is no basis for staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to extraschedular consideration, the Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render inadequate the assigned ratings for his service-connected cervical spine disorder. 38 C.F.R. § 3.321(b) (2014). The Veteran's disorder is evaluated under the diagnostic criteria of the General Rating Formula, and the Board finds that this rating criteria specifically contemplates the level of occupational and social impairment caused by this disorder. 38 C.F.R. § 4.71a. The Veteran's cervical spine disorder has been manifested by pain in the cervical area and flare-ups impacting overhead activities; forward flexion limited to 25 degrees, with objective evidence of pain beginning at 5 degrees; extension limited to 20 degrees, with objective evidence of pain beginning at 5 degrees; additional limitations in range of motion, less movement than normal, and pain on movement after repetitive use; localized tenderness and pain to palpation for joints; normal muscle strength; muscle spasms of the cervical spine not resulting in abnormal spine contours; and guarding of the cervical spine not resulting in abnormal spinal contours. It has not been manifested by muscle atrophy, radiculopathy, ankyloses of the spine, neurologic abnormalities, or intervertebral disc syndrome with incapacitating episodes. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's service-connected cervical spine disorder, symptomatology, and treatment is more than adequately represented by the disability picture represented by the rating assigned. Ratings in excess of 30 percent are provided for certain manifestations of the service-connected disabilities of the cervical spine, but the medical evidence demonstrates that those manifestations were not present throughout the pendency of this appeal. The criteria for the assigned ratings reasonably describe the Veteran's service-connected disability level and symptomatology and, therefore, a schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.71a, Diagnostic Code 5237; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected cervical spine disorder, the evidence shows no distinct periods of time during the appeal period when the Veteran's service-connected cervical spine disorder varied to such an extent that a rating greater or lesser than a 30 percent evaluation would be warranted. See Hart, 21 Vet. App. at 507. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against an evaluation in excess of 30 percent for the Veteran's cervical spine disorder, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 30 percent for service-connected cervical spine disorder is denied. REMAND In December 2004, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for discogenic disease at L3-L4, L4-L5, and L5-S1, claimed as a low back disorder. In January 2005, the Veteran submitted a treatment report from his private physician, D. C., M.D. This treatment report was received at the RO in February 2005, within the appeal period. See 38 U.S.C.A. § 7105 (2014); 38 C.F.R. § 3.156(b) (2014). Nevertheless, when the Veteran filed his present claim in April 2009, the RO treated it as a claim to reopen the issue of entitlement to service connection for a low back disorder. The RO's June 2009 rating decision, which is currently on appeal before the Board, denied the Veteran's claim to reopen his claim. As the Veteran perfected his appeal regarding his low back disorder, the Board has re-characterized the issue to reflect the claim as it was in the December 2004 rating decision. Based on the medical opinion provided in the January 2005 private treatment report, the Board finds that VA has a further duty to assist the Veteran in developing evidence pertinent to his claim herein. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). In particular, the January 2005 treatment report indicated that the Veteran presented with impairments in cervical, upper extremities, and lumbar areas that may have a functional impact on his daily living activities and his ability to work. Dr. C. opined that "the cause of injuries or exacerbations may be directly related to [his] active duty accident." Under these circumstances, the Board finds that an examination is necessary to determine whether the Veteran's current low back disorder is related to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the examiner must review the claims file, including the January 2005 opinion from Dr. C. and the Veteran's statements regarding his in-service accident. Then, the examiner must state whether the Veteran's current low back disorder is related to any incident that occurred during military service. Accordingly, the case is remanded for the following actions: 1. The RO must provide the Veteran an appropriate examination to determine whether any previously or currently diagnosed low back disorder is related to his military service. The evidence of record in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, including the January 2005 opinion from Dr. C., and with consideration of the Veteran's statements, the examiner must state whether any previously or currently diagnosed low back disorder is related to his military service, to include any incident therein. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The examination report must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of his claim, and that the consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the Veteran's claim of entitlement to service connection for a low back disorder. If any benefit remains denied, the RO must provide the Veteran and his representative with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs