Citation Nr: 1752271 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-17 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a rating above 20 percent for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran had active service from January 1972 to February 1976. This claim arrives before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In March 2011, the Veteran testified before a Decision Review Officer in Manchester. In August 2013, the Veteran testified, via videoconference technology, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been included in the claims file. In December 2014, the Board remanded the Veteran's claim to the agency of original jurisdiction (AOJ) for additional development. Now that the Manchester RO has achieved substantial compliance with the remand directives, the Board is prepared to render the decision found below. FINDING OF FACT During the applicable appeal period, the Veteran's cervical spine disability was manifested by forward flexion of the cervical spine between 15 and 30 degrees, the combined range of motion (ROM) of the cervical spine not greater than 170 degrees, and/or abnormal spinal contour due to muscle spasm. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for Veteran's cervical spine disability have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION All of the evidence in the Veteran's record has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). I. VCAA Notification and Assistance Duties VA has met all statutory and regulatory notification and assistance duties with respect to the issue of entitlement to a rating in excess of 20 percent for a cervical spine disability. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. An October 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the duty to assist, the record now contains the Veteran's VA treatment records and examination reports, private treatment records, and lay evidence. The Veteran underwent VA examinations in February 2009 and March 2012 in connection with his increased disability rating claim. Pursuant to a December 2014 Board Remand, the Veteran underwent an additional VA examination in March 2015. The record reflects that the VA examiners reviewed the relevant medical history and the Veteran's lay statements. Additionally, the examinations provided sufficient information to rate the service-connected disability during the appeal period. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Moreover, the Board finds that the RO substantially complied with the Board's Remand directives relevant to the Veteran's increased rating claim. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the Veteran's electronic claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Disability Ratings in General Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. Id.; 38 C.F.R. § 4.45. A. Diagnostic Codes (DCs) Specific to the Cervical Spine The General Rating Formula (GRF) for Diseases and Injuries of the Spine sets the spectrum for disability ratings with DCs 5235 to 5242. 38 C.F.R. § 4.71a. Alternatively, a cervical disability can be rated under DC 5243, and considered under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Id. Under the GRF, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or the combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. Under the GRF, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined ROM 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. Id. Under the GRF, a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. Id. Under the GRF, a 40 percent rating is awarded for unfavorable ankylosis of the entire cervical spine. Id. B. DC Notes Specific to Cervical Spine Note (1) to the GRF specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Note (2) indicates 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 ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM 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 ROM. Id. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the ROM is normal for that individual will be accepted. Id. Note (4) directs the medical provider to round each ROM measurement to the nearest five degrees. Id. Note (5) provide that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6) directs the provider to separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. C. Intervertebral Disc Syndrome Ratings Finally, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under GRF or based in incapacitating episodes. whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The rating schedule provides that a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). III. Analysis of the Veteran's Disability Claim The Veteran's service-connected cervical spine disability is rated as 20 percent disabling on and after October 23, 2008. Within the applicable claim period, the earliest medical provider notes for the Veteran's cervical spine originate from a February 2009 VA examination. At that time, the Veteran displayed 0-50 degrees forward flexion. The combined ROM for the Veteran's cervical spine measured 175 degrees. At the February 2009 examination, there were no notes of muscle spasms severe enough to result in spinal contour changes, nor were notations made for incapacitating periods. At the February 2009 VA examination, neither spinal nor cervical ankylosis was identified. In his March 2010 Statement in Support of Claim, the Veteran commented on the provider's notes that accompanied the February 2009 VA examination. Within this statement, the Veteran provides a correlation between his sharp pain "cure" and tingling/numbness that he has experienced. The Veteran continued his statement by noting an inability to maintain a normal schedule because of the need to halt for pain relief. Moreover, the Veteran described late night "lock ups," which require more than an hour heat and massage to relieve. In April 2010, the Veteran's long-time treating physician commented on his cervical issues. The physician did not identify or discuss ROM, muscle spasms, guarding, and/or incapacitating episodes. However, the provider did note degenerative and osteoarthritic changes in the cervical spine. Dr. K.L. identified physical therapy, massage, and heat treatments for the Veteran's cervical spine disability. But, the Veteran continued to report chronic pain despite these interventions. In March 2011, during testimony before a decision review officer, the Veteran described incapacitating headaches, which originate with his cervical spine disability. The Veteran testified that he believed an incapacitating episode would necessitate taking a seat, relaxation, and not looking at anything. During testimony, the Veteran did not suggest a physician had prescribed bed rest for his incapacitating headaches and/or cervical spine disability. On March 28, 2011, the Veteran's massage therapy and wellness center offered a summary of its treatment and observations. After eleven sessions, a massage therapist reported chronic pain had led to an aspirin regiment of twice per day. The massage therapist identified a 30 degree forward flexion limit of the cervical spine, and combined ROM of 90 degrees. The massage therapist revealed that there was moderate straightening at C5-C6. The massage therapist also commented on a cautious, stiff gait exhibited by the Veteran. In March 2012, the Veteran underwent another VA examination for his cervical spine disability. In addition to an examination of the Veteran, the provider reviewed the claims file before providing her results and conclusions. At that time, the Veteran's cervical forward flexion was greater than 30 degrees. The Veteran's combined ROM for the cervical spine amounted to 175 degrees in March 2012. Intervertebral disc syndrome and incapacitation episodes were non-existent and/or not noted during this VA examination report. The reporting physician noted muscle spasms severe enough to result in abnormal spinal contour. Neither spinal nor cervical ankylosis was identified. Through August 2013 hearing testimony, before the undersigned VLJ, the Veteran described the shooting cervical pains he experienced to various areas of the body, including head and thigh. The undersigned VLJ asked if decreased ROM was the underlying cause for his appeal for an increased disability rating. However, the veteran did not specify cervical ROM, nor did he identify how his pain had negatively affected his cervical ROM. During testimony, the Veteran described incapacitating episodes (of varying length) occurring two to four times a day. The Veteran testified that he had never been prescribed bed rest by a physician. In July 2014, the Veteran underwent an occupational therapy consultation. At that time, the Veteran demonstrated 54 degrees of forward cervical flexion. The combined ROM for the cervical spine equated to 199 degrees. This VA provider did not report intervertebral disc syndrome and/or incapacitation episodes. During this consultation, the Veteran reported 8/10 pain with movement. In March 2015, the Veteran was seen by a VA provider who had reviewed the claims file. The provider noted 35 degrees of forward flexion, identifying 130 degrees of total ROM for the cervical spine. The provider identified guarding, muscle spasms, and localized tenderness as contributors to abnormal gait or spinal contour. The physician noted that the Veteran endured intervertebral disc syndrome; however, the condition had not led to physician-ordered bed rest. Neither spinal nor cervical ankylosis was identified. Upon thorough review of the Veteran's claims file, the Board finds the criteria for a disability rating in excess of 20 percent have not been met at any time during the applicable appeal period, October 2008 to present. The evidence does not reflect forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine at any time during the claim period. As detailed above, forward cervical flexion was to 50 degrees, 30 degrees, 30 degrees, 54 degrees, and 35 degrees on examination, respectively. Further, VA examiners in February 2009, March 2012, and March 2015 did not identify the presence of ankylosis of the cervical spine, favorable or unfavorable, which would be necessary before the Veteran would qualify for a 30 or 40 percent disability rating. 38 C.F.R. § 4.71a, DC 5237. In addition, the treatment records do not reflect findings of intervertebral disc syndrome, and therefore a higher evaluation is not warranted under Diagnostic Code 5243. Ultimately, the evidence does not show that the Veteran reported any incapacitating episodes that required bed rest prescribed by a physician during applicable appeal period, October 2008 to present. 38 C.F.R. § 4.71a, DC 5243, Note (1). The Board has also considered whether the Veteran's cervical spine disability resulted in a level of functional loss greater than that already contemplated by the rating assigned to the period on appeal. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In February 2009, the Veteran reported that flare-ups generated a radiating, stabbing pain, which lasted a few minutes. The Veteran did not identify numbness or tingling. The provider speculated that flare-ups could feasible limit ROM an additional 20-30 degrees. There was no evidence of weakened movement, excess fatigability or incoordination at this examination that could be attributed to the Veteran's cervical spine disability. In March 2012, the Veteran reported that flare-ups of his cervical spine disorder would accompany increased activity, position alterations, and weather changes. However, the Veteran did not reveal a quantitative impact of a flare-up on ROM. When tested (for ROM) after repetitive movements, all ROM values remained the same or improved slightly. During a flare-up, the Veteran would lie down and rest, utilize local heat and a massage unit, and take aspirin. The provider noted that the Veteran's functional impairment included less movement than normal, weakened movement, and pain on movement. In March 2015, the Veteran reported that flare-ups accompanied increased activity, turning of the head, heavy carrying, and prolonged sitting. The Veteran reported a marked decrease in ROM during a flare-up. When tested for ROM after repetitive movements, four of the six ROM values decreased by 5 degrees. The provider noted that cervical pain, weakness, fatigability or incoordination limited functional ability during flare-ups. With regards to ROM limitation during flare-up, the Board cannot provide much probative weight to the speculative opinion of the February 2009 VA examiner. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Even with the speculative addition of 20-30 degree decrease in combined ROM, the Veteran's disability picture would not warrant a higher 30 percent rating. See 38 C.F.R. § 4.71a. Even when the Board utilizes the March 2012 and March 2015 ROM values during flare-up, the Veteran's disability picture does not warrant a 30 percent rating, because forward flexion of the cervical spine is still above 15 degrees and ankylosis is non-existent. See 38 C.F.R. § 4.71. As such, the Board finds the 20 percent disability rating contemplates the level of functional loss experienced by the Veteran as it is based on a complete review of the clinical evidence and the Veteran's lay statements during the pendency of the appeal. See DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. With respect to other neurological symptoms, the clinical evidence does not reflect any findings of neurological symptoms associated with the Veteran's cervical spine during the pendency of the appeal. The VA examinations in February 2009, March 2012, and March 2015 show the Veteran denied any bowel and bladder incontinence in relation to his cervical spine. 38 C.F.R. § 4.71a, GRF, Note (1). The Board acknowledges the Veteran is competent to describe his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board has based its decision on the Veteran's lay statements as well as the objective medical evidence, as it demonstrates consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. For the reasons stated above, the Board finds the evidence supports a disability rating of 20 percent for the Veteran's service-connected cervical spine disability for the duration of the appeal period, October 2008 to present. The Board has considered the benefit of the doubt doctrine; yet, the preponderance of the evidence weighs the Veteran's appeal for a disability rating in excess of 20 percent. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a, DC 5237, 5243; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for a cervical spine disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs