Citation Nr: 1605947 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 09-16 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to a compensable rating for cervical spine disability prior to September 5, 2013 and to a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to November 1993 with subsequent service in the reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a May 2013 decision, the Board reopened the Veteran's claim for service connection for right ankle disability and remanded that claim, along with the claim for increase for cervical spine disability, for further development. In a December 2013 rating decision, the RO granted an increased, 10 percent rating for the Veteran's cervical spine disability effective September 5, 2013. FINDINGS OF FACT 1. The Veteran is not shown to have a current right ankle disability. 2. The Veteran's cervical spine disability has been manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ankle disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. Prior to September 5, 2013, the criteria for a 10 percent but no higher rating for the service-connected cervical spine disability have been met. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242 (2015). 3. From September 5, 2013, the criteria for a rating in excess of 10 for the service-connected cervical spine disability have not been met. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis A. Service connection for right ankle disability Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records show that he suffered a right ankle sprain in April 1992. He received follow up care and evaluation for the sprain in May and July 1992. In May 1992, an X-ray of the ankle was negative. At a July 15, 1992 medical visit, the Veteran was diagnosed with a grade I right ankle sprain. The treatment plan was for him to perform rehabilitation exercises and it was noted that neither follow-up nor a profile would be required. Subsequently, at a March 1993 medical visit, the Veteran reported he had not experienced any recurring ankle sprains and that he did not currently have any ankle pain. At his July 1993 separation examination, the lower extremities were found to be normal. On his July 1993 report of medical history at separation, the Veteran did not specifically report any current ankle pain but did report a history of swollen and painful joints and foot pain. Post-service medical records initially include a January 1994 VA right ankle x-ray report, which produced a diagnostic impression of normal right ankle. Subsequent records from Fort Benning show that the Veteran suffered a right ankle inversion sprain in late July 2003, apparently while on reserve duty. X-rays of the ankle were essentially negative, with only moderate soft tissue swelling about the ankle shown. The Veteran received follow-up care through November 2003, including a program of home rehabilitative exercises. At a November 18, 2003, visit, the Veteran's gait was found to be normal with no erythema or edema noted. There was tenderness to palpation at the right lateral malleolus. Active range of motion was 8 degrees dorsiflexion to 43 degrees plantar flexion. Anterior drawer test was mildly positive (cavitation with test), posterior drawer test was negative and talar tile test was negative. The diagnosis was status post right ankle sprain and the prognosis was determined to be good. The short term goal set for the Veteran was to tolerate phase 1 of a walk to run program within 3 weeks and the long term goal was for the Veteran to tolerate running 2 miles at Army physical fitness test time standard within 8 weeks. In a December 2006 statement, the Veteran indicated that he continued to re-injure the right ankle. He noted that he was treated at Fort Benning from July 2003 to February 2004 for one of these injuries that required months of physical therapy and required him to wear a brace. He noted that the ankle was currently weak and that it required that he wear boots for ankle support if he was off of level ground. Additionally, the cold weather currently caused the ankle to ache. Further, he indicated that there were several other times when he experienced the ankle giving way but that these instances did not require medical treatment. At a September 2013 VA examination, the Veteran reported that he had had occasional episodes over the years of simple ankle sprain related to rolling his ankle during PT activities. He stated that the ankle was treated conservatively with Motrin, ice and rest and that he was always restored to full duty. He denied any ankle diagnoses or treatments after service. He also denied any persistent ankle condition since service other than the ankle would ache when exposed to cold weather conditions. This aching would resolve when he returned indoors to heat. Additionally, he denied any functional limitations or any current treatments or use of assistive devices. He did wear boots as a law enforcement officer for ankle support but denied needing any special accommodations or having any work restrictions. On examination, range of motion of the right ankle was normal with no objective evidence of painful motion. There was also no limitation of motion on repetitive use and no pain on palpation. Muscle strength testing was normal, as was joint stability. X-ray of the ankle was normal. The examiner determined that the Veteran did not have any functional loss or functional impairment of the right ankle. The examiner diagnosed the Veteran with ankle sprains, 1992 and 2003, resolved. The examiner commented that there was no evidence of a right ankle condition as evidenced by the normal physical examination, normal X-ray and past medical records, which did not show any persistent right ankle condition. The VA examiner's examination findings and commentary constitute highly probative evidence that the Veteran does not have a current right ankle disability. Notably, the Veteran is also competent to report on the condition of his ankle as he experiences it, as he did in December 2006 when he indicated that the ankle was weak; required him to wear boots when he walking on non-level ground; ached in cold weather; and had given way on other occasions in the past, albeit not to the point where any medical attention was required. However, the VA examiner specifically considered the Veteran's general reports of his ankle problems as part of the examination (e.g. the weakness requiring the wearing of boots and the aching in cold weather) but found on objective examination that the ankle did not show any significant weakness, limitation of motion or pain to palpation. Additionally, the examiner noted that the Veteran's pain during cold weather was temporary in nature, as it would subside upon him returning indoors. Moreover, in relation to the Veteran's December 2006 report of the ankle having given way on other occasions, the VA examiner's objective testing of ankle instability was negative, indicating that no significant instability was present. Consequently, although the Veteran's reports of his own ankle symptomatology are probative to the question of whether he has any current right ankle disability, they are outweighed by the conclusion of the VA examiner that no such disability is present, arrived upon after a comprehensive examination with appropriate consideration of the Veteran's medical history. In short, while the Veteran may experience some minor level of right ankle symptomatology, including occasional giving way that does not require medical attention, the weight of the evidence is against a finding that he has an actual current chronic right ankle "disability" or that he has had any such disability at any point during the appeal period. While the Board understands the Veteran's concerns, they are outweighed by the medical evidence, which the Board cannot ignore. Notably, the right ankle sprain experienced in 2003 predates the current appeal period. In the absence of proof of current disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Veteran's claim must be denied. B. Increased rating for cervical spine disability Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In a February 1994 rating decision, the RO granted service connection for right neck strain and assigned a noncompensable rating effective November 6, 1993. In October 2005, the Veteran sought an increased rating. In a December 2013 rating decision, the RO granted an increased, 10 percent rating for the Veteran's cervical spine disability effective September 5, 2013. The Veteran's service-connected cervical spine disability has been rated under 38 C.F.R. § 4.73, Diagnostic Code 5323. Under this Code, which can apply to muscles of the neck, a 10 percent rating is warranted for moderate muscle disability, a 20 percent rating is warranted for moderately severe muscle disability and a 30 percent rating is warranted for severe muscle disability. The Veteran's cervical spine disability can also be potentially rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Under Diagnostic Code 5242 (degenerative joint disease of the cervical spine), a 10 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a combined range of motion of the cervical spine greater than 170 but not greater than 335; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent disability rating is for assignment when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a 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 assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal cervical motion is forward flexion, extension, and lateral flexion from zero to 45 degrees. Normal left and right rotation is from zero to 80 degrees. The normal combined range of motion for the cervical spine is 340 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. Additionally, the Veteran's cervical spine disability can potentially be rated under Diagnostic Code 5003 for degenerative arthritis (i.e degenerative joint disease). See also Diagnostic Code 5242. Under this Code, degenerative arthritis established by x-ray findings is to be rated on limitation of motion. However, when limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed. For cases where no limitation is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, a 10 percent evaluation is only warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The cervical spine is considered as 1 group of minor joints ratable on parity with 1 major joint. 38 C.F.R. § 4.45. In his December 2005 claim, the Veteran reported that he still had problems with pain and stiffness in his neck. A January 2009 private X-ray of the cervical spine produced a diagnostic impression of some degenerative osteoarthritic change with no acute fracture of subluxation. At an October 2013 VA examination, the Veteran denied any current or ongoing treatment for his neck condition. He indicated that he continued to have intermittent flares of right paracervical muscle spasms about once every 2 to 3 weeks. He could not describe the exact activities that would provoke this as it varied greatly. He noted that he would get neck spasm and pain that would last on average from 1 to 2 days. He got relief from aspirin, rest and stretching. He denied any functional loss or loss of motion and indicated that occasionally the neck spasms were associated with radiation down the posterior right arm. He indicated that this had occurred intermittently over the years but had been present frequently over the last month. He denied any loss of muscle strength or functional loss. Flare-ups would resolve with resolution of the muscle spasm. He did not have any diagnosis of radiculopathy and denied any current medical treatment for the neck. Physical examination showed lateral flexion, extension, right lateral flexion and left lateral flexion of 45 degrees or greater and right and left rotation of 80 degrees or greater. There was no objective evidence of painful motion on right and left lateral flexion and right and left lateral rotation. There was no additional limitation of motion on repetitive use. The examiner found that the Veteran did not exhibit any localized tenderness, pain to palpation, guarding or muscle spasm. Muscle strength testing of the upper extremities was normal, as were reflexes and sensory examination. The examiner noted that the Veteran did report one symptom of right upper extremity radiculopathy, mild intermittent pain, usually dull, on the right side. However, the examiner determined that this symptomatology did not amount to even mild radiculopathy of either extremity (i.e. she found that neither upper extremity was affected by radiculopathy). Additionally, the examiner found that the Veteran did not have any other neurological abnormality related to a cervical spine condition and that he did not have intervertebral disc syndrome. The examiner noted that imaging studies had not shown arthritis and that a September 2013 nerve conduction study was normal. The examiner concluded that the Veteran's cervical spine condition did not impact his ability to work, providing evidence against this claim. In the December 2013 rating decision, the RO indicated that the higher 10 percent rating was warranted based on the presence of painful motion upon examination. At the outset, the Board notes that assignment of the 10 percent rating under Diagnostic Code 5323 is not appropriate, as the Veteran is not actually shown to have any disability of any muscle in the neck area and even if such disability were present, there is no indication of the presence of the moderate level of neck disability necessary to support a compensable rating. The disability is also not shown to meet the criteria for a compensable rating under the General Rating formula. In this regard, forward flexion to 40 degrees or less, combined range of motion of the cervical spine of 335 degrees or less, muscle spasm, guarding or localized tenderness and vertebral body fracture are all not shown. However, during the September 2013 VA examination, the Veteran was shown to have painful but otherwise noncompensable motion on lateral flexion and extension. Additionally, while arthritis was not noted during this examination, it was affirmatively found during the earlier January 2009 private X-ray of the cervical spine. Accordingly, a 10 percent but no higher rating is warranted for degenerative joint disease of the cervical spine, a group of minor joints. 38 C.F.R. § 4.45, 4.71a, Codes 5003, 5242. Moreover, as the September 2013 VA examination findings are essentially consistent with the Veteran's description of the neck pain and stiffness he reported in his December 2005 claim for increase, a 10 percent but no higher rating may be assigned effective December 23, 2005, the date of receipt of this claim. The Board is cognizant that the Veteran did report muscle spasm during the September 2013 VA examination and the presence of this symptom could provide an alternative basis for assignment of the existing 10 percent rating. However, assignment of such a rating in combination with the 10 percent rating for painful motion would amount to impermissible pyramiding. 38 C.F.R. §§ 4.14, 5003, 5242. Thus, as the painful motion is reasonably established to date back to the Veteran's December 2005 claim and the first notation of the muscle spasm is not until September 2013, the Board has assigned the existing rating under Diagnostic Codes 5003-5242, to afford the Veteran the greater benefit. The Board has also considered whether a separate rating could be assigned based on any neurological manifestations of the existing cervical spine disability. However, as the September 2013 VA examiner ultimately concluded that the Veteran's intermittent dull pain in the right upper extremity was not a symptom of any radiculopathy or any other underlying neurological impairment; and as there is no other medical evidence indicating the presence of such neurological impairment, the Board finds that the weight of the evidence is against a finding that such associated impairment is present. Accordingly, there is no basis for assigning a separate rating based on such impairment. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45; Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, the September 2013 VA examiner actually found that the Veteran's cervical spine disability did not result in any functional impairment. Additionally, although the Veteran has reported some level of flare-ups, he did not report that these episodes resulted in any significant loss of function. Consequently, they are adequately compensated by the existing 10 percent rating. 38 C.F.R. §§4.40, 4.45; Deluca v. Brown 8 Vet. App. 202 (1995). The Board has also considered whether the schedular evaluation for the Veteran's cervical spine disability is inadequate, thus requiring that the RO refer the claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2014); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In determining whether referral for extra-schedular evaluation is necessary, the Board must first consider whether there is an exceptional or unusual disability picture present, where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The schedular evaluations in this case are not inadequate. Evaluations in excess of those currently assigned are provided for certain manifestations of the service-connected disability on appeal, which have been discussed. The evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities, as the criteria assess the level of occupational and functional impairment attributable to the Veteran's symptoms, including pain and stiffness, both of which are contemplated under the applicable criteria pertaining to limitation of motion and arthritis. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his impairment level and symptomatology. Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration of the rating assigned is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 115. II. Due Process 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; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in letters sent to the Veteran in January 2006 and December 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA service treatment records and available, pertinent post-service medical records are associated with the claims file. Additionally, the Veteran was afforded appropriate VA examinations in relation to both of his claims in September 2013. Additionally, in regard to the claim for increase for cervical spine disability, there is no indication or assertion that this disability has increased in severity since the September 2013 examination. Accordingly, it is sufficiently contemporaneous. There is no indication of additional existing evidence that is necessary for a fair adjudication of the instant claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER From December 23, 2005 to September 5, 2013, a 10 percent, but no higher, rating is granted for cervical spine disability subject to the regulations governing the payment of monetary awards. From September 5, 2013, a rating in excess of 10 percent for cervical spine disability is denied. Service connection for right ankle disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs