Citation Nr: 1628705 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 11-24 057 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased evaluation for Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord; comprised of a minimum 30 percent rating; and associated 30 percent rating for limited cervical motion; a 30 percent rating for radiculitis of the right upper extremity; a 30 percent rating for dysthymic disorder; and a 10 percent rating for scars. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from March 1984 to August 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Columbia, South Carolina, Regional Office (RO). In May 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In April 2014 and November 2014, the Board remanded the issue to the RO for additional action. The Veterans Benefit Management System ("VBMS") electronic file indicates that the RO has undertaken development of a separate neurological claim and medical development is pending. Further, the Board has determined that additional development is required as to whether the Veteran has a left (major) upper extremity neurological disorder caused as a residual of the Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt and this aspect of the appeal will be remanded. FINDINGS OF FACT 1. The Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord disorder is manifested by no more than limitation of motion of the cervical spine without ankylosis. 2. The Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord disorder is characterized in part by a dysthymic disorder resulting in difficulty in maintaining effective work and social relationships. 3. The Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord disorder caused two painful scars. hyCONCLUSIONS OF LAW 1. The criteria for the assignment of an increased disability rating, greater than 30 percent, for a cervical spine without ankylosis, associated with the Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord are not met. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2015). 2. The criteria for the assignment of a disability rating of 50 percent for a dysthymic disorder, associated with the Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord disorder are approximated. 38 C.F.R. § 4.130, Diagnostic Code 9433 (2015) 3. The criteria for the assignment of an increased disability rating for scars, greater than 10 percent, associated with the Veteran's Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt of the spinal cord disorder are not met. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including a June 2010 notice which informed him of the evidence generally needed to support a claim for an increased rating for his syringomyelia; what actions he needed to undertake; and how VA would assist him in developing his claims. The June 2010 notice was issued to the Veteran prior to the April 2011 rating decision from which the instant appeal arises. VA has secured or attempted to secure all relevant documentation to the extent possible. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations for compensation purposes. The examination reports are of record. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. As a result of this decision, the Veteran will receive the maximum schedular entitlement pertaining to his rating. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Syringomyelia is rated according to 38 C.F.R. § 4.124a, diagnostic code 8024 and a minimum 30 percent rating is warranted. 38 C.F.R. § 4.124a (2015). The diseases and residuals listed in 38 C.F.R. § 4.124a may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc. are to be especially considered and should be rated by referring to the appropriate bodily system of the rating schedule. Id. The Note to diagnostic code 8024 states: It is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. Although not binding on the Board because it is an administrative guide, the M21-1 provides further guidance on rating a similar disorder to syringomyelia, as the rating criteria are identical to those listed for multiple sclerosis under diagnostic code 8018. 38 C.F.R. § 4.124a. The M21-1 directs that, in rating cases of multiple sclerosis, the residuals are each rated separately under their appropriate diagnostic codes and then a combined rating is determined for the entire disability. If the combined rating is less than 30 percent, a 30 percent rating is assigned. See M21-1.III.iv.4.G.5.b-c. The Veteran's disability rating for syringomyelia is currently comprised of a 30 percent rating for the general disability under diagnostic code 8024 as stated; a 30 percent rating for limitation of motion of the cervical spine under 38 C.F.R. § 4.71a, diagnostic code 5290; a 30 percent rating for right upper extremity radiculitis under 38 C.F.R. § 4.124a, diagnostic code 8513; a 30 percent for dysthymic disorder under 38 C.F.R. § 4.130, diagnostic code 9433; and 10 for scars under 38 C.F.R. § 4.118, diagnostic code 7804. The Veteran currently has a combined rating of 80 percent for his service-connected disabilities. A. Limitation of Motion of the Cervical Spine 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, 4.59. A 30 percent rating for limitation of motion of the cervical spine is warranted for forward flexion of the spine to 15 degrees or less. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran was afforded a VA examination for his cervical spine in February 2008. At that time, he had forward flexion to 25 degrees. No ankylosis was noted. He was diagnosed with degenerative joint disease (DJD) of the cervical spine. The examination report also noted that he had a November 2007 diagnosis of degenerative stenosis of the cervical spine without spinal cord compression. In December 2010, the Veteran demonstrated decreased motion in all planes, however, no ankylosis was noted. In light of the Veteran's current reports, the Board also notes that during this examination, the examiner noted the Veteran's subjective reports of low back pain. While the examiner found that the Veteran had facet arthritis on Lf-S1, he specifically noted that the disorder was not related to the Chiari malformation. The Veteran is currently rated under the previously applicable diagnostic code 5290 which is no longer listed as a rating code available for rating diseases and injuries of the spine. Therefore, the Veteran will be rated under diagnostic code 5242 for degenerative arthritis of the spine. A rating in excess of 30 percent for limitation of motion of the cervical spine is not warranted as the Veteran's cervical spine disorder demonstrates no ankylosis. During the May 2012 hearing, the Veteran testified that although his cervical spine has painful motion, he is able to rotate it. Additionally, the disability does not warrant assignment of a separate compensable evaluation for spinal stenosis as such an evaluation would constitute pyramiding. 38 C.F.R. § 4.14. B. Dysthymic Disorder A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9433. A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In February 2015, the Veteran was afforded a VA examination. The examiner stated that the Veteran had a diagnosis of depression and that his depression was related to pain in his arm and back, as well as to job stress. The examiner indicated that he had "[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." The Board will afford the benefit of the doubt to the Veteran and grant a 50 percent rating. During his testimony before the undersigned, the Veteran was clearly markedly affected as he discussed the symptoms associated with his disorder and his attempts to negotiate them in both his employment and personal life. Although the February 2015 examiner did not elaborate further, he noted that the Veteran had a depressed mood, anxiety, chronic sleep impairment and disturbances of mood. It was also noted in the examination report that the Veteran received counseling as to his job performance. Mauerhan dictates that the symptoms as listed in 38 C.F.R. § 4.130 under the General Formula for Rating Mental Disorders is illustrative. The Veteran's depressive symptoms approximate the level of disability indicating reduced reliability and productivity such that he has difficulty in maintaining effective work and social relationships. A 50 percent rating will be granted. C. Scars Unstable or painful scars are rated according to diagnostic code 7804. One or two scars that are unstable or painful warrants a 10 percent evaluation. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (2) to the diagnostic code states that "If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars." The Veteran was last afforded a VA examination for his scars in October 2010. It was noted at the Veteran had two scars from surgeries addressing his Chiari malformation disability. The examiner reported a cervical spine scar that was 17 centimeters by 0.5 centimeters, stable, and slightly elevated. The examiner also reported a thoracic spine scar that was 11.5 centimeters by 0.5 centimeters but widened to 1.5 centimeters, and was tender to palpation, slightly elevated, and stable. The Veteran reported that the scars were intermittently painful and that he had difficulty turning his head when experiencing pain flare-ups in the cervical scar. A rating in excess of 10 percent for scars is not warranted as the Veteran has two painful scars which are stable. ORDER An increased evaluation, greater than 30 percent, for a cervical spine disorder associated with Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt is denied. A 50 percent evaluation for a dysthymic disorder associated with Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt is granted. An increased evaluation, greater than 10 percent, for two scars associated with Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt is denied. REMAND As noted, the RO has undertaken development of a claim involving a right upper extremity neurological disorder. Because the law requires evaluation of the Veteran's primary disorder of Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt under multiple bodily systems, and because all VA records are constructively in possession of the Board, the Board must defer action on evaluation of the neurological disorders. In substance, the development now undertaken at the RO may have a direct impact upon the presently-service-connected right upper extremity residuals. Additionally, the Veteran has alleged and the record suggests that the Veteran may have a left upper extremity disorder associated with the primary disorder of Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt. The Board will direct medical development. The matter is therefore REMANDED for the following: 1. Advise the Veteran that he may submit any further medical and non-medical evidence not presently on record, relevant to the ratings of or the associated disorders of the primary disorder of Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt. Provide the Veteran with any release of information forms and assist in their development. 2. Obtain any VA medical records generated since January 2015 and include them in the VBMS file. 3. After the Veteran's response or after a reasonable period of time, conduct any appropriate medical development, to include a file review and/or VA medical examination if necessary, to determine if the Veteran has a LEFT upper extremity disorder caused or aggravated by the primary disorder of Chiari malformation with syringomyelia and residuals of a posterior fossa decompression and syringo subarachnoid shunt. After completion of the above, adjudicate the remaining claims for ratings associated with right and left upper extremity disorders. Conduct any other appropriate VA appellate proceedings, including if necessary a return of the file to the Board. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). Department of Veterans Affairs