Citation Nr: 1751532 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 04-19 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased initial disability rating for spondylosis and degenerative changes, cervical spine, rated as 10 percent disabling prior to September 26, 2003, and as 20 percent disabling as of that date. 2. Entitlement to extraschedular evaluations for the service-connected disabilities of chronic headaches, diplopia, and spondylosis and degenerative changes, cervical spine, pursuant to 38 C.F.R. § 3.321 (b)(1). REPRESENTATION Veteran represented by: Louis Fischera, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to October 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 decision rendered by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA. The Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing in May 2008. A transcript of the hearing is of record. The Board finds the Remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the initial rating period from September 26, 2003, spondylosis and degenerative changes, cervical spine has been manifested by moderate limitation of motion and stiffness. 2. For the entire initial rating period, spondylosis and degenerative changes, cervical spine has not been manifested by ankylosis, IVDS, severe limitation of motion of the cervical spine, or forward flexion to 15 degrees or less. 3. The Veteran's headaches do not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. 4. The Veteran's diplopia does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. 5. The Veteran's cervical spine disorder does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the period prior to September 26, 2003, the criteria for a rating of 20 percent but no higher for a cervical spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (effective after September 26, 2003), 5290 (effective before September 26, 2003). 2. For the entire initial rating period from, the criteria for a rating in excess of 20 percent for a cervical spine disability have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (effective after September 26, 2003), 5290 (effective before September 26, 2003). 3. The criteria for an extraschedular rating for spondylosis and degenerative changes, cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321 (b)(1). 4. The criteria for an extraschedular rating for chronic headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321 (b)(1) (2016). 5. The criteria for an extraschedular rating for diplopia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321 (b)(1) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to notify and assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2016). In this case, the appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). During the 2008 hearing, the VLJ clarified the issues, determined that there were potential outstanding records, explained an increased rating claim and elicited testimony from the Veteran and his wife. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ comply with 38 C.F.R. § 3.103. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The RO associated the Veteran's service treatment records (STRs) with the claims file. In addition, the RO associated the Veteran's VA and identified private treatment records with the claims file. The appropriate VA opinion was obtained to adjudicate the extraschedular rating claim. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159 (c)(4). In this case, the Veteran was provided with multiple VA examinations, post-remand cervical spine examination was conducted in April 2012 with addendum in February 2014. The examiners considered and addressed the Veteran's contentions, and conducted thorough medical examinations of the Veteran. The attorney argued in November 2014 that the evidence upon which the cervical spine has been rated is stale. However, the Board notes that the duty to obtain a new examination is triggered when the available evidence of record indicates that the previous examination no longer reflects the current state of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Here, the Veteran has not asserted that his condition has changed since the last VA examination, and there is no other indication in the records that his disability has worsened. As such, the Board finds it unnecessary to remand for a new VA examination. Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied. Increased Schedular Rating for Cervical Spine The Veteran contends he is entitled to an increased rating for his cervical spine disorder. The Veteran's disability is currently rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237 as of September 29, 2003, and as 10 percent under former Diagnostic Code 5290 prior to that date. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The claim was received October 31, 2002. The regulations for rating disabilities of the spine were twice revised, effective September 23, 2002; and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110 (g) (West 2002); 38 C.F.R. § 3.114 (2016). Prior to September 26, 2003, neck or cervical spine disabilities were rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5293. As the Veteran has already been rated as 10 percent disabled between October 31, 2002, and September 26, 2003, the Board will limit its discussion to the DCs providing for higher ratings. Under DC 5290, moderate limitation of motion warranted a 20 percent rating while a 30 percent rating was warranted for severe limitation of motion in the neck. Further, higher ratings between 30 and 100 percent were authorized under the older criteria for disorders such as vertebra fracture and ankylosis. The older regulations compensated intervertebral disc syndrome (IVDS) based on either the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Initially, the Board points out that the Veteran does not have IVDS, and thus evaluation of this disability based on IVDS is not applicable under either the former or revised criteria. Moreover, there is no evidence of vertebra fracture and ankylosis. Under the older regulations, a rating in excess of 20 percent and no higher is warranted between October 31, 2002, and September 26, 2003, for the Veteran's neck disability. Simply put, the medical evidence and testimony satisfactorily establish moderate limitation of motion. The Veteran testified in 2008 that, throughout the period on appeal, he has had trouble moving his neck up and down and side to side, to include when driving. His wife confirmed this degree of limitation of motion in her testimony. Additionally, VA and private treatment records dated in 2006 record neurological and orthopedic assessments, to include based on MRI, of moderate limitation of motion. Here, the Veteran maintained that his symptoms and limitations were consistently restrictive since the initial date of claim. As such, the Board accords the Veteran the benefit of the doubt and finds that moderate limitation of motion has been demonstrated from the date of claim through September 29, 2003, and that the criteria for a 20 percent rating are met under DC 5290. However, a rating in excess of 20 percent is not shown under this former criteria at any time. Again, no evidence of record indicates such problems as ankylosis, vertebra fracture, or more than moderately disabling orthopedic or neurological symptoms. Indeed, VA and private treatment records reflect significant spondylosis and limited, but not severely limited, range of motion. The Veteran described the ability to perform activities such as riding his mower and driving, with difficulty. The Board finds that the description of activities and the objective findings do not demonstrate severe limited range of motion of the cervical spine. The VA examiner in 2012 found limited left lateral flexion and extension (each 25 out of a normal 45 degrees) and otherwise normal range of motion. The examination and treatment record does not indicate symptomatology that would warrant a higher rating under the older criteria. Under the newer criteria, cervical spine disorders are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (whichever results in the higher evaluation). 38 C.F.R. § 4.71a. Under these provisions, ratings of 10, 20, 30, 40, 60, and 100 percent are authorized for such disorders as IVDS, muscle spasm, guarding, limitation of motion, and ankylosis. As the Veteran has been rated as at least 20 percent disabled during the appeal period, the Board will assess the criteria for ratings in excess of 20 percent. Under the General Rating Formula, a 30 percent disability rating is assigned where there is forward flexion of the cervical spine to 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 (2) to the General Rating Formula explains that for VA compensation purposes normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not for consideration as the Veteran does not have IVDS as noted above, and the examiner in 2012 noted no incapacitating episodes. The relevant evidence since September 26, 2003, consists of VA treatment records, private treatment records, lay assertions and testimony, and a VA examination report dated in March 2012 with addendum in February 2014. This evidence does not support a schedular rating beyond 20 percent- i.e., none of the evidence dated during the appeal period indicates ankylosis or pain-free forward flexion of 15 degrees or less. VA and private treatment records reflect that the Veteran complained of chronic neck pain and limited neck movement related to moderately severe spondylosis and foraminal stenosis throughout the appeal period. A VA treatment report dated in October 2006 found flexion to 45 degrees, extension to 45 degree, rotation of 50 degrees bilaterally and lateral flexion of 10 degrees bilaterally with no increase in pain. The VA examination report dated in April 2012 and the 2014 addendum reflect muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Flexion was to 45 degrees or greater with no pain. There was no additional loss of range of motion after repetitive testing, and there was no functional loss and or functional impairment of the cervical spine. Moreover, given that the Veteran has repeatedly shown a substantial range of motion in all directions, ankylosis is not shown. When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of pain in his cervical spine, it appears that his pain has not resulted in additional functional loss, as noted during his 2012 VA examination. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the rating he currently receives. Therefore, in conclusion, a rating in excess of 20 percent is not warranted. Extraschedular Ratings In an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Chief Benefits Director or the Director, Compensation Service (Director) for potential assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321 (b)(1). An extraschedular evaluation may be assigned when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance; the Board can review the denial of an extraschedular rating on appeal. See Floyd v. Brown, 9 Vet. App. 88 (1996). In July 2008, the Board referred the claims for cervical spine disability, diplopia and headaches for extraschedular consideration and in September 2014, the Director determined that an extraschedular evaluation was not warranted. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015). The Board may now consider the issue of entitlement to increased ratings on an extraschedular basis. The Veteran's cervical spine disability is rated as discussed in detail above. The rating background of the other two disabilities will be addressed so that the extraschedular analysis will have contextual relevance. The Veteran's diplopia is rated 30 percent pursuant to 38 C.F.R. §4.84a, Diagnostic Code 6090; effective from June 27, 2002. Diplopia is measured using the Goldmann Perimeter Chart. 38 C.F.R. § 4.77 (Figure 2) (2016). The chart identifies four major quadrants (upward, downward, and two lateral), plus a central field (20 degrees or less). If diplopia exists within the central 20 degrees of vision the equivalent visual acuity is 5/200. Diplopia from 21 degrees to 30 degrees is the equivalent of visual acuity of 15/200 when down, 20/100 when lateral and 20/70 when up. Diplopia from 31 degrees to 40 degrees is the equivalent of 20/200 visual acuity when down, 20/70 when lateral and 20/40 when up. 38 C.F.R. § 4.84a, Diagnostic Code 6090. A 30 percent evaluation is assigned where there is 20/40 visual acuity in one eye with 10/200, or 5/200 visual acuity or light perception only in the other eye, where visual acuity is 20/50 in one eye with visual acuity of 20/200 or 15/200 in the other eye, or where visual acuity is 20/70 in one eye with visual acuity of 20/70 or 20/100 in the other eye. 38 C.F.R. §4.84a, Table V. As noted by the Board in 2008, the Veteran's diplopia is assigned the maximum rating possible for single eye visual acuity (5/200). Testing in July 2003 revealed that diplopia was noted throughout the entire field of the eye in all gazes; but significantly diplopia was present centrally between 10 and 20 degrees. This is the equivalent of 5/200 vision according to VA regulations. See 38 C.F.R. §§ 4.77, 4.84a, Diagnostic Code 6090 (2007). At a 2004 eye examination, the examiner reported central visual acuity was reportedly single, and that there was vertical and oblique diplopia on all binocular peripheral fields of vision outside of the central 25-40 degrees of visual field. However, he also stated that the visual field test performed in July 2003 was unchanged. As indicated, the 2003 Goldman Perimeter chart showed diplopia was present centrally between 10 and 20 degrees. Therefore, the Veteran's diplopia was still the equivalent of 5/200 vision according to VA regulations. See 38 C.F.R. §§ 4.77, 4.84a, Diagnostic Code 6090 (2016). While the evidence shows that the Veteran was also found to have loss of visual field on the VA examinations, this impairment was not attributed to the service-connected disability and therefore is not for consideration. The only diseases of the eye which warrant a rating in excess of 30 percent are tuberculosis of the eye, congestive or inflammatory glaucoma, or malignant new growths. See 38 C.F.R. § 4.84a, Diagnostic Codes 6010, 6012, 6014. However, none of these diseases are reflected in the medical records, nor is the Veteran service connected for such disability(ies). The Veteran's headaches are currently assigned the highest disability rating, 50 percent, from January 2006, and a 30 percent rating prior to that date under Diagnostic Code 8100 (migraines). Under Diagnostic Code 8100, migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent disability evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating" and the Court has not undertaken to define "prostrating." See Fenderson v. West, 12 Vet. App. 119 (1999). According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." As noted by the Board in the 2008 decision, VA and private medical records, as well as examinations document that prior to January 2006, the Veteran's chronic headaches were near-constant. The outpatient treatment record and a 2004 VA examination showed the Veteran's headaches caused occasional nausea, radiating pain, and photophobia. Such symptoms qualify as "characteristic prostrating attacks" and they are shown to have occurred on a near-constant basis. The headaches were not productive of severe economic inadaptability. Beginning in January 2006, severe economic inadaptability was demonstrated by the taking of sick leave from his job in January 2006, and retiring on disability in August 2006, due in part, to the severity of his headaches. Here, the Veteran clearly testified that his headaches were severe but did not cause him to be unable to work prior to January 2006. An administrative review for entitlement to extraschedular evaluation under 38 C.F.R. 3.321 (b)(1) was completed by the Director of Compensation (Director) in September 2014. The Director reviewed the record, and noted the Board remand, the December 2008 rating decision, the claim for TDIU in September 2010 and the 2011 rating decision granting TDIU from January 2006. He also noted the May 2006 letter from the U S Office of Personnel Management that stated the medical records show that the Veteran's degenerative cervical spine disease with radiculopathy and chronic pain syndrome diplopia, and chronic headaches prevent him from performing his job as a Supervisory Inventory Management Specialist. The Director stated that extraschedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. He stated that the Veteran was awarded TDIU under § 4 16(a). An individual review of the service connected headaches, spondylosis with degenerative changes of the cervical spine and diplopia disabilities revealed that each disability was adequately addressed under the current rating schedule criteria See Thun v Peake, 22 Vet App 111 (2008). The Director found that the cervical spine disability, diplopia and headaches do not present evidence of an exceptional or unusual disability picture such as marked interference with employment or frequent period of hospitalization that would render the current rating schedule criteria. Entitlement to increased evaluations on an extra schedular basis for the service connected headaches, spondylosis with degenerative changes of the cervical spine and diplopia, was thus denied. After review of the evidence of record, the Veteran's cervical spine disability, diplopia and headaches do not manifest any symptoms outside of those contemplated by the schedular criteria. The evidence fails to show anything unique or unusual about the Veteran's three disabilities that would render the schedular criteria inadequate. The Veteran's main symptoms appear to be severe headaches requiring prostration, limited range of motion of the neck, and diplopia equivalent to 5/200 vision, all of which are specifically contemplated in the ratings assigned. Additionally, the Board agrees with the Director's conclusion that the Veteran's three disabilities did not rise to the level of marked interference with employment prior to the assignment of TDIU. There is also no evidence that the Veteran was hospitalized for his conditions. Furthermore, after a review of the Veteran's records, the Director concluded, and the Board agrees, that the evidentiary record did not demonstrate that the symptomatology consistently associated with the Veteran's service-connected headaches, diplopia or cervical spine disability was not wholly contemplated by the criteria utilized to assign the aforementioned evaluations. While the Board notes the attorney's argument in September 2014 that the three disabilities warrant extraschedular ratings because they cause him to be unemployable, the Board notes that TDIU is in effect from the date that he functionally left work in 2006 due to his service-connected disabilities. Therefore, the Board concludes that the assigned scheduler evaluations reasonably describe the Veteran's headaches, diplopia and cervical spine disability, and entitlement to increased evaluations on an extraschedular basis is denied. ORDER An increased scheduler initial disability rating for spondylosis and degenerative changes, cervical spine, to 20 percent, is granted prior to September 26, 2003, a 20 percent scheduler rating at all times relevant to this claim is denied. An extraschedular rating for spondylosis and degenerative changes, cervical spine is denied. An extraschedular rating for chronic headaches is denied. An extraschedular rating for diplopia is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs