Citation Nr: 1740331	
Decision Date: 09/18/17    Archive Date: 09/29/17

DOCKET NO.  12-16 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased rating in excess of 20 percent for herniated disc C3-C4 and degenerative disc disease C5-C6 (cervical spine disability).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	 The American Legion


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

David Nelson, Counsel


INTRODUCTION

The Veteran served on active duty with verified periods of service from September 1974 to October 1987 and from October 1991 through August 1996.  It appears the Veteran retired with more than 21 years of active service, however, the DD-214s on file do not verify that entire time period.

This case comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  This case was most previously before the Board in October 2016.

In February 2015, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge.  A copy of the transcript is of record.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system.  The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issues on appeal.

The claim of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

Throughout the rating period on appeal, the Veteran's cervical spine disability has been manifested by complaints of pain and functional impairment that more nearly approximate cervical spine flexion to 15 degrees; neurological complications and/or incapacitating episodes have not been shown.


CONCLUSION OF LAW

The criteria for entitlement to a rating of 30 percent, but no higher, for herniated disc C3-C4 and degenerative disc disease C5-C6 have been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016).  VA's duty to notify was satisfied by a RO letter dated in June 2009.  There is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).

With regard to the duty to assist, the Veteran's service treatment records (STRs) are associated with the claims file, as are VA medical records, private medical records, and the Veteran's Social Security Administration (SSA) records.  The Board finds that the rating examinations obtained in this case are adequate, as they considered the pertinent evidence of record, included an examination of the Veteran, elicited subjective complaints from the Veteran, and contained supporting explanations where appropriate.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.

The Board finds that there has been substantial compliance with its prior remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The October 2016 Board remand directed that outstanding VA records be obtained and a VA cervical spine examination be undertaken.  Additional VA records have been obtained, and in December 2016 a VA spine examination was completed.  Accordingly, there has been compliance with the prior remand.

A VLJ who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the VLJ noted the issues on appeal and elicited testimony regarding the Veteran's cervical spine symptoms.  The issues were explained in terms of the scope of the claim for benefits.  A deficiency was found in the evidence, and the claim was remanded and a VA cervical spine examination was obtained to correct such deficiency.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing.  Based on the foregoing, the Board finds that, consistent with Bryant, it may proceed to adjudicate the claim based on the current record.

VA's duties to notify and assist are met, and the Board will address the merits of the claims.

II.  Applicable Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016).  The Schedule is primarily a guide in the evaluation of 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.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2016). 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2016).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2016).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016).

The Veteran's cervical spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243.  Under Diagnostic Code 5243, cervical spine disc disease, a 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 evaluation is warranted where there is forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent evaluation is warranted where there is unfavorably ankylosis of the cervical spine.  A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 enervation, 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 that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca, 8 Vet. App 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

The General Rating Formula directs that the Board must evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a , Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero 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.  38 C.F.R. § 4.71a, Note (2). 

Intervertebral disc syndrome, (preoperatively or postoperatively) can be evaluated under the General Rating Formula for Diseases 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.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes assigns a 40 percent rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned for evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Note (1).

III.  Analysis

At his February 2015 Board hearing the Veteran stated that at a VA examination he had to stop the movement of his head as he had reached a point that when he turned his head he would be hit by pain and he could not turn it any further.  He would sometimes wear a neck brace and use a TENS unit, but further indicated that they were of little help.

During the course of the appeal the Veteran has undergone VA cervical spine examinations in July 2010, October 2012, July 2015, and December 2016.  During those examinations, and in treatment records, the Veteran has made credible and consistent claims of neck pain.  Diagnoses have included post-operative residuals of C3-C4, C5-C6 vertebral bodies fusion/internal fixation by metallic compression screws and plate device.  As for medications, records indicate that the Veteran takes Naproxen and muscle relaxers as needed.  

Pertinent findings as to range of motion of the cervical spine have included the following:  July 2010 VA examination:  forward flexion to 20 degrees, with objective evidence of pain; December 2016 VA examination:  forward flexion to 40 degrees; July 2015 VA examination - forward flexion to 40 degrees; and October 2012 VA examination - forward flexion to 25 degrees with pain at the end range of motion.  Notably, various other range of motion findings such as extension (20 degrees, July 2010 and July 2015), left lateral flexion (20 degrees, July 2010; 15 degrees, October 2012; 20 degrees, July 2015; 20 degrees, December 2016), and right lateral flexion (20 degrees, July 2010; 15 degrees, October 2012), have either reached 15 degrees or are nearer to that finding.  The 2012 VA examiner found there was no additional limitation of motion upon repetitive motion, but did find additional functional loss.  The 2016 VA examiner was unable to conduct repetitive testing.  Although the Veteran's cervical spine disability does not meet the technical requirements for a 30 percent rating (as forward flexion to 15 degrees has not been shown), the Board finds that the Veteran's functional impairment results in the cervical spine disability more nearly approximating  the criteria for a 30 percent rating under Diagnostic Code 5243.  See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  As such, the Board finds that a 30 percent rating for cervical spine disability is warranted throughout the claims period.

A 40 percent rating, however, is not for assignment.  As noted by the range of motion findings above, there cervical spine is not ankylosed.  Additionally, the 2015 and 2016 VA examiners also noted there was no cervical spine ankylosis. 

The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question.  The 2012, 2015, and 2016 VA examiners all determined that any upper extremity neurological findings were unrelated to the cervical spine disability; rather, the examiners attributed the findings to carpal tunnel syndrome and cubital tunnel syndrome.  Thus, the Board finds that a separate evaluation for associated neurological impairment is not warranted at this time.

The Board has also contemplated assigning a disability rating based on incapacitating episodes.  However, the Veteran has not reported, and the evidence of record does not indicate, any physician-prescribed bed rest.  Therefore, a rating based in incapacitating episodes is not warranted at this time.

In sum, a rating of 30 percent for the service-connected cervical spine disability is warranted.  In making this determination, the Board has resolved reasonable doubt in the Veteran's favor.

In adjudicating a claim the Board must assess the competence and credibility of the veteran.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Veteran is competent to give evidence about what he observes or experiences concerning his neck pain.  In fact, his credible statements have been used in part in granting an increased rating in this case.  However, he is not competent to identify a specific level of disability according to the appropriate diagnostic code.  Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings directly address the criteria under which the Veteran's cervical spine disability is evaluated.  Therefore, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted.

Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

A rating of 30 percent for herniated disc C3-C4 and degenerative disc disease C5-C6 is granted, subject to the applicable law governing the award of monetary benefits.


REMAND

Based on the action taking in this decision to increase the Veteran's cervical spine disability rating, the Board finds that the issue of entitlement to a TDIU should be reconsidered by the AOJ prior to consideration by the Board.  Furthermore, as the current VA examinations of record do not provide insight into whether the Veteran is unemployable due to the combined effect of his service-connected disabilities, the Board finds that remand is appropriate for a VA TDIU examination.

The Board further observes that remand is required as the December 2016 supplemental statement of the case indicated that the Veteran did not meet the schedular requirements for a TDIU.  However, as noted in the May 2013 statement of the case, the RO has previously indicated that based on a common etiology of musculoskeletal conditions (cervical spine and knee) the Veteran had a combined 40 percent evaluation and thus met the schedular evaluation for TDIU eligibility.

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after December 6, 2016.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his representative.

2.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  After any additional records are associated with the claims file, provide the Veteran a VA examination to determine the impact of his service-connected disabilities on his employability.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file must be made available to and reviewed by the examiner.  The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history.  Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.

The Veteran is service-connected for the following disabilities: irritable bowel syndrome, bilateral carpal tunnel syndrome, cervical spine degenerative disc disease, tinnitus, left forearm nerve entrapment, right and left knee degenerative joint disease, and left ear hearing loss.

4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2016).  In the event that the Veteran does not report for any 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.

5.  Ensure compliance with the directives of this remand.  If a report is deficient in any manner, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

6.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs