Citation Nr: 1750132 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 11-26 616A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1973 to May 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction now resides with the RO in Montgomery, Alabama. In October 2014, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to afford the Veteran a new VA examination regarding his cervical spine condition and to develop his claim for a TDIU. Since remand, the Veteran underwent a new VA examinations for his cervical spine in September 2016, and the claim for a TDIU has been developed. Thus, the Board determines that there has been substantial compliance with the October 2014 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). FINDINGS OF FACT 1. During the appeal period, the Veteran's cervical spine (neck) disability manifested in flexion of the cervical spine no less than 25 degrees and with no ankylosis of either the cervical or entire spine; additionally, there is no evidence of incapacitating episodes lasting 4-6 weeks during a 12 month period. 2. The Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. During the appeal period, the criteria for a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2016). 2. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify 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 and 38 C.F.R. § 3.159. For the issue decided herein, VA provided adequate notice in a letter sent to the Veteran in February 2009. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records, and the VA examination afforded the Veteran in September 2016 for his cervical spine is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The examiner considered the Veteran's symptoms and history regarding his neck condition, performed appropriate testing, and addressed all relevant rating criteria. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In the instant case, the Veteran filed his claim for increase on January 29, 2009. The period under consideration therefore begins on January 29, 2008. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's arthritis of the cervical spine has been evaluated under Diagnostic Code 5242. 38 C.F.R. § 4.71a (2016). Diagnostic Code 5242 is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that 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 is rated at 20 percent. For the cervical spine, forward flexion of 15 degrees or less or favourable ankylosis of the entire cervical spine is rated at 30 percent. Unfavourable ankylosis of the entire cervical spine is rated at 40 percent. A maximum 100 percent rating requires unfavourable ankylosis of the entire spine. Diagnostic Code 5242 indicates to see also Diagnostic Code 5003. Diagnostic Code 5003 refers to degenerative arthritis and provides that degenerative arthritis established by x-ray will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5003 also indicates that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine indicates to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is rated 40 percent disabling. Incapacitating episodes having a total duration of at least six weeks during the past 12 months is rated 60 percent disabling. Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes explains that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that require bed rest prescribed by a physician and treatment by a physician. Note (2) explains that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 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). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Facts The Veteran contends that his cervical spine disability is more disabling than reflected by the 20 percent rating currently assigned. In regard to medical evidence, the record reflects various VA examination and treatment reports during the appeal period, which the Board will address chronologically. The Veteran underwent a VA examination for his cervical spine (neck) in May 2011. The corresponding Disability Benefits Questionnaire (DBQ) reflects the Veteran's reports that he underwent surgery for his neck in 2002, which had a poor outcome and that he therefore continued to have constant neck pain and shoulder girdle with occasional radicular symptoms in both arms. The DBQ indicates that the Veteran had epidurals nine times a year to the cervical and lumbar spine segments. Physical examination indicated normal posture and head position. There were no abnormal spine curvatures and no cervical or thoracolumbar ankylosis. The examiner noted muscle spasms, pain with motion, and tenderness but indicated that these symptoms were not severe enough to be responsible for abnormal gait or abnormal spinal contour. The examiner indicated no atrophy, weakness, or guarding. As to range of motion, the Veteran's flexion was measured at 0 to 25 degrees, and his extension was measured at 0 to 25 degrees. The examiner indicated there was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. Decreased senses were noted. The Veteran underwent another VA examination for his cervical spine in November 2012, but the Board finds the examination inadequate and therefore not probative. Essentially, a number of the VA examiner's findings were inconsistent with the overall record. A December 2015 and March 2016 note from Birmingham Pain Clinic reflects the Veteran's complaints of chronic neck pain. A September 2016 DBQ reflects the Veteran's reports of constant, moderately severe pressure and pain in the neck. The Veteran reported that the pain is worse with sleeping, rotation of the neck, and reaching over his head. The Veteran reported that he had cervical fusion in 2005 or 2006 and denied any other signs or symptoms. The DBQ indicates that the Veteran did not report flare ups of the cervical spine. As to functional loss or functional impairment of the cervical spine, the Veteran reported pain, fatigue, and weakness with sleeping, rotation of the neck, and reaching over head. Physical examination indicated that the Veteran's range of motion was "abnormal or outside of normal range." His forward flexion was measured at 0 to 30 degrees, and his extension was measured at 0 to 30 degrees. The examiner indicated that there was pain noted on exam but that it did not result in or cause functional loss. The examiner indicated there was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. As to location, severity and relationship to condition, the DBQ indicates moderate tenderness with palpation over the posterior cervical spine. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions but noted that the Veteran was not being examined immediately after repetitive use over time. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also indicated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran had localized tenderness of the cervical spine but specified that the Veteran did not have a resulting abnormal gait or abnormal spinal contour. The examiner indicated no muscle spasm, guarding or muscle atrophy. Deep tendon reflexes were all normal. Sensory exam indicated decreased senses for the right shoulder, right inner/outer forearm and right hands and fingers. The examiner noted symptoms of radiculopathy. The examiner indicated there was no ankylosis of the spine and no other neurologic abnormalities related to a cervical spine condition, such as bowel or bladder problems due to cervical myelopathy. The examiner indicated that the Veteran has IVDS of the cervical spine but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's cervical spine condition. The examiner indicated there were no scars (surgical or otherwise) related to the Veteran's cervical spine conditions or to the treatment of the condition. The examiner also indicated there was no vertebral fracture with loss of 50 percent or more of height. Additionally, there are various other treatment reports of record which indicate neck pain. As to lay statements, the Veteran has specified that his condition limits his ability to walk, stand, and sleep and that he is constantly in pain. See transcript from September 2011 Decision Review Officer Hearing. Additionally, in an October 2013 brief from the Veteran's representative, the representative indicated that with regard to whether the Veteran meets the criteria for a 30 percent rating, it is not required and not expected that all cases will show all the findings specified by the rating schedule. The representative cited 38 C.F.R. § 4 7 regarding symptoms more nearly approximating a higher rating. The representative reiterated this argument in a September 2017 brief. In the October 2013 brief, the representative also indicated that the General Rating Formula for Diseases and Injuries of the Spine also provides for a separate evaluation for any associated objective neurologic abnormalities, including, but not limited, to bowel or bladder impairment, under an appropriate diagnostic code. The representative indicated that the Veteran has been diagnosed with right upper extremity radiculitis by his treating physician and is service connected for degenerative disc disease with radiculopathy. Merits Having reviewed the evidence of record, medical and lay, the Board finds that a higher rating than 20 percent is not warranted for the Veteran's cervical spine condition. Throughout the appeal period, the Veteran's flexion of the cervical spine was greater than 15 degrees but not greater than 30 degrees, which is commensurate with a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. As such, the Board finds that the Veteran's symptoms are commensurate with a 20 percent rating. At no time during the appeal does the record evidence that the Veteran's flexion of the cervical spine was 15 degrees or less, as required for a higher rating based on limitation of motion. Nor is there any indication of favorable ankylosis of the entire cervical spine. To the contrary, the adequate VA examination reports of record, which are the only medical evidence of record to provide relevant rating criteria, consistently indicate that the Veteran does not have ankylosis of the cervical or entire spine. As the VA examiners applied appropriate testing and physically examined the Veteran, the Board finds the examiners' assessments of the Veteran's cervical spine highly probative. Nor has the Veteran suggested that he experiences ankylosis of the spine. Thus, the evidence does not support a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges the Veteran's representative's assertions regarding 38 C.F.R. § 4 7 for deciding between two ratings. However, the Veteran's range of motion is squarely within the parameters of those measurements commensurate with a 20 percent rating, and the Veteran has not demonstrated any of the criteria required for a 30 percent rating. As such, there is no question as to whether the Veteran's cervical spine condition more nearly approximates a 20 or 30 percent rating. The evidence is commensurate with a 20 percent rating. Additionally, any rating higher than 30 percent for the cervical spine requires at least unfavorable ankylosis of the entire cervical spine. However, as mentioned, the record is clear that the Veteran does not have ankylosis of any form of either the cervical or entire spine. Thus, there is no basis for a higher rating than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. Nor is a higher rating warranted for additional limitation of motion. The Board acknowledges the Veteran's reports that his neck condition causes pain and weakens his ability to walk, stand, and sleep. However, the record consistently indicates that the Veteran does not have additional limitation of motion due to pain, weakness, fatigability or incoordination, and his painful motion is compensated in the 20 percent rating currently assigned. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 206 (1995). The Board has also considered whether a higher rating may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The record establishes that the Veteran has IVDS associated his with cervical spine condition. However, the September 2016 VA examiner indicated that the Veteran did not have any incapacitating episodes during a 12 month time period. Nor has the Veteran alleged incapacitating episodes due to his cervical spine condition during the appeal period. Thus, the Board finds that the Veteran did not have incapacitating episodes of at least four weeks as required for a rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to any separate evaluations, the Board acknowledges the representative's October 2013 indication that there should be a separate rating for radiculopathy. The Board notes that the September 2016 VA examiner indicated radicular symptoms. Pursuant to these findings, the Veteran has since been separately rated for radiculopathy of the right upper extremity attributable to his cervical spine condition in a separate rating decision, with ratings effective September 21, 2016 (the date of examination). A separate evaluation for associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, is not applicable. The September 2016 VA examiner indicated that the Veteran does not have any such conditions. Nor does the Veteran suggest that he has bowel or bladder problems. As such, a separate rating for neurological abnormalities is not applicable. The Board has also considered whether a separate rating is warranted for scars under Diagnostic Codes 7800-7805. 38 C.F.R. § 4.118. However, the record consistently indicates that the Veteran does not have any notable scars associated with his cervical spine condition or its treatment. As such, a separate rating for scars is not applicable. Consideration has also been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted a higher schedular rating than assigned. Hart v. Mansfield, 21 Vet. App. 505. At no time during the appeal did the Veteran's cervical spine condition manifest in flexion of 15 degrees or less or incapacitating episodes of at least four weeks. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's cervical spine condition throughout the appeal period. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. Based on the evidence, the Board finds that the Veteran is not able to secure or follow substantially gainful employment as a result of his service-connected disabilities. The Veteran submitted a claim for a TDIU that was received by VA on May 14, 2014. The Veteran is currently service connected for more than one disability, one of which is rated at 40 percent, and his total rating has been 70 percent since September 21, 2016. The Veteran therefore meets the schedular requirements for a TDIU since September 21, 2016. See 38 C.F.R. § 4.16(a). Prior to September 21, 2016, the Veteran did not have at least one disability rated at 40 percent, and his total rating was not at least 70 percent. Thus, the Veteran did not meet the schedular requirements for a TDIU prior to September 21, 2016. 38 C.F.R. § 4.16(a). Nonetheless, the Board notes that all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun v. Peake, 22 Vet. App. 115 (2008) and Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Direction of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at *6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. at *5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.)" Id. at *5 fn 4 (emphasis added). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). Here, the evidence of record is consistent that the Veteran's ability to work is impaired by his service-connected disabilities. The May 2011 VA examiner indicated that the Veteran normally worked as a mechanic and had retired. The examiner indicated that the Veteran was not working at the time and that the cause of retirement was spine problems. As to effects on usual occupation and resulting work problems, the examiner indicated that the Veteran's spine condition had resulted in him being assigned different duties and increased absenteeism. The September 2016 VA examiner opined that the Veteran's spine impacts his ability to work in that he would not be able to do work that requires pushing, pulling, lifting or carrying over 20 pounds. The examiner opined that sedentary work may be appropriate for the Veteran. The Board finds both examiners' opinions probative. The examiners physically examined the Veteran and assessed his work history and potential in accordance with his physical capabilities. The opinions are also consistent with the information provided by the Veteran in his March 2014 Application for Increased Compensation Based on Unemployability. The Veteran specified that his spine, PTSD, and three toes prevent him from working. He indicated that he completed one year of college and had worked as a mechanic, which he retired from in 2001 because of his service-connected disabilities. The Board notes that the Veteran also receives Social Security Administration benefits for his spine disability. The Board notes that the Veteran is not service connected for PTSD or any other psychiatric disorder. However, in addition to being service connected for his spine and toes as reported in his application, he is also service connected for a disorder of his right knee and radiculopathy of his right upper extremity. Given the Veteran's service-connected disabilities, the Board finds that his overall disability picture includes issues with his neck, which the September 2016 VA examiner indicated limits the Veteran to not lifting or moving objects over 20 pounds, as well as issues with his upper extremities, knee, and toes on his right side. Given the Veteran's work history as a mechanic and his overall disability picture, the Board does not find that the Veteran could perform the physical tasks of a mechanic, or any other similar physically strenuous profession, on a regular basis. The Board acknowledges that the September 2016 examiner indicated that the Veteran may be able to do sedentary work. However, given the Veteran's education and work history, which is predominantly in manual labor, the Board does not believe he would be able to routinely secure work in a sedentary environment. Given the evidence, the Board finds that the Veteran's overall disability picture impairs his ability to obtain and follow substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence supports the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities. ORDER Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine is denied. Entitlement to a TDIU due to service-connected disabilities is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs