Citation Nr: 1526646 Decision Date: 06/23/15 Archive Date: 06/30/15 DOCKET NO. 09-05 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for cervical spine strain, currently rated at 10 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Dixon, Associate Counsel INTRODUCTION The Veteran had active service from September 2001 to December 2006. She also served with the Army National Guard following her active duty. The issue of entitlement to an increased rating for cervical spine strain comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to TDIU was adjudicated and denied in a supplemental statement of the case issued in September 2013. This case was previously before the Board in February 2012, and was remanded for further development. Specifically, the Board requested that the Veteran be provided with a VA examination to address the severity of her cervical spine condition, to include secondary symptomatology. Additionally, the Board found that the issue of entitlement to TDIU had been raised in the record and instructed the RO to develop and adjudicate that issue. The Board notes that the Veteran was granted separate ratings for radiculopathy of each upper and lower extremity, and thoracolumbar minor scoliosis in a September 2013 rating decision. No appeal has been initiated by the Veteran as to the ratings provided, and as such, the Board does not have appellate jurisdiction over them. 38 U.S.C.A. § 7105 (2014). As to the remaining claims on appeal, the Board finds that the requested actions of the February 2012 Board decision were completed and the matter has been properly returned for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. The issue of entitlement to an increased rating for PTSD has been raised by the record in a VA Form 9 dated June 9, 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's cervical spine strain is manifested by complaints of pain, functional limitation of flexion to 35 degrees, and a combined range of motion of 235 degrees. 2. The Veteran's service-connected disabilities do not prevent her from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for cervical spine strain have not been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2014). 2. The criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for Cervical Spine Strain Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2014). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for different periods where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the 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 warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; of, 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 disability rating is provided for favorable ankylosis of the entire cervical spine. A 40 percent rating is provided for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. General Rating Formula for Diseases and Injuries of the Spine Note (1). For VA 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. General Rating Formula for Diseases and Injuries of the Spine Note (2). 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. Id. The normal combined range of motion of the cervical spine is 340 degrees. Id. For VA purposes, 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. General Rating Formula for Diseases and Injuries of the Spine Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. When evaluating the musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria. Painful motion may be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in, and is rated at the same level as functional loss where motion is impeded. 38 C.F.R. § 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995); Schafrath, 1 Vet. App. at 592; VAOPGCPREC 9-98. The Veteran currently receives a 10 percent rating for her cervical spine strain. As noted above, she also currently receives a 10 percent rating for radiculopathy of each lower extremity and a 20 percent rating for radiculopathy of each upper extremity, related to her back conditions. Since the issues of increased rating for bilateral upper and lower extremity radiculopathy are not before the Board, determination of the severity of the Veteran's cervical spine strain will exclude consideration of her separately rated radiculopathy symptoms. A review of the evidence reflects the Veteran's ongoing complaints of cervical spine pain, with additional symptoms of stiffness, and fatigue. She experiences daily flare-ups of pain that can last up to six hours, and are alleviated with medication and/or rest. See March 2007 VA examination; July 2010 VA examination; but see July 2013 VA examination (Veteran reported that she does not experience flare-ups). The Veteran has also reported that her cervical spine pain causes difficulty with standing or sitting. See July 2010 VA examination. Clinical range of motion testing during the relevant time period revealed limitation of forward flexion of the cervical spine to be limited to, at most, 35 degrees. July 2013 VA examination. The combined range of motion of the cervical spine is, at most, limited to 235 degrees, when considering reduced movement following repetitive motion. Id. Such measurements are consistent with a 10 percent rating. While the Board acknowledges that the Veteran experiences some limited and painful motion, and there was evidence of painful forward flexion during the July 2013 VA examination at 30 degrees, evaluations must be based on demonstrated functional impairment. The issue is not whether pain additionally limits flexion, but whether that additional limitation would decrease the flexion to less than 30 degrees. Given that the Veteran demonstrated forward flexion to 35 degrees, had no additional limitation of motion following repetition, and does not experience flare-ups that cause additional limitation, the evidence in this case does not show or suggest that motion of the cervical spine is functionally decreased to 30 degrees or less due to pain. Furthermore, VA examinations also consistently showed no evidence of ankylosis, intervertebral disc syndrome, muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour, as required for a higher or separate rating. The Veteran's treatment records show no findings worse than those from the VA examinations, such as to warrant a higher rating. For example, in July 2009, it was noted that the Veteran had cervical spine flexion to 40 degrees, extension to 45 degrees, right lateral flexion to 45 degrees and left lateral flexion to 30 degrees. An October 2009 treatment record notes that the cervical range of motion was normal, with good excursion, and no restriction or significant guarding. A November 2009 treatment record notes that cervical range of motion is intact. Based on the above, the Board finds that the preponderance of the evidence shows that the Veteran's cervical spine strain most closely approximates the criteria for a 10 percent rating. The Board acknowledges the Veteran's contentions that her cervical spine condition is of great severity due to her primary symptoms of pain, stiffness, and fatigue. However, the Board finds that her symptomatology is consistent with a 10 percent rating, and that her complaints of pain, stiffness, and fatigue do not cause additional functional impairment. The Board has also considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as pain and limited motion, are explicitly listed in the rating criteria or considered with regard to functional impairment in the rating already assigned. Moreover, the Veteran has not expressly raised the matter of entitlement to an extraschedular rating. Rather, her contentions have been limited to those discussed above, i.e., that her cervical spine condition is more severe than is reflected by the assigned rating. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities, and referral for extra-schedular consideration is not warranted under the circumstances of the case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In sum, the Board finds that the evidence shows that the Veteran's cervical spine disability meets the criteria for a 10 percent rating, but no more. Therefore, her claim for a rating in excess of 10 percent must be denied. II. Entitlement to TDIU Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this provision, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered one disability. The Veteran is service-connected for PTSD, currently rated at 30 percent; radiculopathy of each upper extremity, currently rated at 20 percent each; cervical spine strain, currently rated at 10 percent, left ankle tendonitis, currently rated at 10 percent; thoracolumbar minor scoliosis, currently rated at 10 percent; radiculopathy of each lower extremity, currently rated at 10 percent each; scar, residual of right breast mass excision, currently rated at 10 percent; and trigeminal nerve paresthesia, currently non-compensable. The separate 20 percent evaluations for the upper extremity radiculopathy conditions combine to 40 percent when considering the bilateral factor, and are considered one disability for purposes of 38 C.F.R. § 4.16. See 38 C.F.R. §§ 4.25 and 4.26 (collectively indicating that 20 percent combined with 20 percent is 36 percent, but when the 10 percent bilateral factor of 3.9 percent is added to the 36 percent, this totals 39.9 percent, which is then rounded up to 40 percent). Her overall disability evaluation is 80 percent; therefore the Veteran meets the percentage requirements for eligibility to receive TDIU benefits. 38 C.F.R. § 4.16(a). Consequently, the remaining question is whether the Veteran's service-connected disabilities alone are of sufficient severity to render her unemployable. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Rather, the pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a).) In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by non-service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). The Veteran has alleged that she is unable to maintain substantially gainful employment as a result of her service-connected disabilities. She reported on her TDIU application that she graduated from high school, attended one year of college, and received training as an avionics technician during service. After service she obtained an FCC license as a marine electrician and an associate's degree in real estate. She indicated that she had intermittent periods of work during the last five years and had last worked in August 2014. She has performed a variety of work, including as an electrician, mechanic, waitress, and administrative assistant. Although the Veteran asserts that she is unable to find a job due to her disabilities, she has offered no evidence as to why that is so, nor is there any evidence in the record to support her claim. Rather, the evidence shows that her service-connected disabilities only have a minimal impact on her ability to obtain and maintain employment. As to the physical limitations caused by her service-connected disabilities, the Board acknowledges that the Veteran has difficulty with tasks that require prolonged walking or standing or require lifting heavy objects. However, the Veteran's TDIU application shows that she has experience performing work as an administrative assistant. It is reasonable to assume that an administrative position would not require prolonged walking or standing or lifting heavy objects. As to the effects of her psychiatric disabilities, a July 2010 VA psychiatric examination report states that the Veteran is capable of working on a full-time basis from a mental health point of view, despite difficulties with interpersonal interactions. The Board acknowledges that the Veteran received involuntary inpatient treatment from May to June 2014. However, there is no indication in those records as to why the Veteran would be incapable of obtaining or maintaining substantially gainful employment. The Board also acknowledges that the Veteran has filed a claim for an increase of her PTSD disability rating. However, since the Veteran already meets the schedular threshold for 38 C.F.R. § 4.16(a) and there is sufficient evidence in the record regarding her psychiatric condition such that the Board is able to decide the TDIU claim, the Board finds that adjudication of her PTSD rating claim is not material to the TDIU issue at hand. After reviewing all evidence of record, the Board concludes that there is no evidence suggesting that the Veteran would be mentally or physically incapable of performing work due to her service connected disabilities, particularly in light of her work history and additional training and education. Accordingly, her claim for entitlement to TDIU is denied. IV. VA's Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to her under the Veteran's Claims Assistance Act of 2000 (VCAA). Notice letters dated in February and July 2013 are of record. The RO has obtained pertinent medical records including the Veteran's STRs and VA outpatient treatment reports. The Veteran has not identified any other outstanding records that she wants VA to obtain or that she believes are relevant to her claims. Therefore, the duty to assist her in obtaining pertinent records has been satisfied, to the extent that identified records are obtainable. 38 C.F.R. § 3.159(c) (2014). The Veteran was also provided with VA examinations in March 2007, July 2010, and July 2013 to address the nature and severity of her cervical spine strain. She has made no allegations as to the inadequacy of any medical opinion. As such, the Board is entitled to presume the competence of the VA examiners and the adequacy of the examinations. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Accordingly, the Board finds that no further development is required in this case. ORDER Entitlement to a rating in excess of 10 percent for cervical spine strain is denied. Entitlement to TDIU is denied ____________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs