Citation Nr: 1753678 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-09 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a service-connected cervical spine disability prior to March 2, 2016 (excluding period where a temporary total rating was in effect pursuant to 38 C.F.R. § 4.30), and to a rating in excess of 30 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for a service-connected lumbar spine disability prior to March 2, 2016, and to a rating in excess of 20 percent thereafter. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1987 to February 2008, which included service in the Persian Gulf. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran and his spouse provided testimony at a hearing conducted before the undersigned Veterans Law Judge (VLJ) in August 2013. A transcript of that hearing is of record. The procedural history of this case includes other issues in addition to those listed above, as well as prior Board actions. In pertinent, the other issues have been adjudicated such that only the present cervical and lumbar spine claims remain in appellate status. Moreover, the most recent Board action was in April 2017, at which time the present claims were remanded for further development to include new examinations to evaluate the service-connected cervical and lumbar spine disabilities. Such examinations were accomplished in May 2017, and all other development directed by the Board's remand appears to have been substantially accomplished. Accordingly, the Board will proceed with adjudication of this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. Prior to March 2, 2016, the record does not reflect the Veteran's service-connected cervical spine disability was manifested by forward flexion limited to 30 degrees or less. 2. From March 2, 2016, the record does not reflect the Veteran's service-connected cervical spine disorder has been manifested by ankylosis. 3. Prior to March 2, 2016, the record does not reflect the Veteran's service-connected lumbar spine disability was manifested by forward flexion of the thoracolumbar spine of less than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 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. 4. From March 2, 2016, the record does not reflect the Veteran's service-connected lumbar spine disability has been manifested by forward flexion limited to 30 degrees or less, or ankylosis. 5. The record does not reflect either the Veteran's service-connected cervical or lumbar spine disabilities are manifested by associated neurologic impairment that has not already been separately evaluated; or incapacitating episodes as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's service-connected cervical spine disability prior to March 2, 2016, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2016). 2. The criteria for a rating in excess of 30 percent for the Veteran's service-connected cervical spine disability from March 2, 2016, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2016). 3. The criteria for a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability prior to March 2, 2016, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2016). 4. The criteria for a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability from March 2, 2016, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, the Board notes that the present appeal arises from disagreement with the initial evaluations assigned for the Veteran's cervical and lumbar spine disabilities following the grant of service connection. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that 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); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the record reflects the Veteran has been provided with correspondence which informed him of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. The Board also notes the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the August 2013 hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, he was accorded VA medical examinations which evaluated his cervical and lumbar spine disabilities, most recently in May 2017. VA examiners are presumed qualified to render competent medical opinion(s), and the Veteran has not challenged the qualifications of the VA examiners in this case. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). No inaccuracy has been identified with respect to the findings of the VA examination, nor has either the cervical or lumbar spine increased in severity since that examination. Accordingly, the Board finds that this examination is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board further notes that it does not appear the Veteran has identified any current deficiency regarding the notification and assistance he has been provided in this case, or in the conduct of the August 2013 hearing. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). General Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In fact, the Veteran is already in receipt of such "staged" ratings for his service-connected cervical and lumbar spine disabilities. With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The Board notes that both the Veteran's service-connected cervical and lumbar spine disabilities have been manifested by complaints of pain during the pendency of this case. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Board notes that VA examinations included repetitive motion testing in an effort to simulate the effect of pain during flare-ups, to include if there was additional loss of motion. The Board also notes that the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the testing listed in the final sentence of § 4.59 is required unless a medical examiner determines that it cannot or should not be conducted. The pertinent sentence states that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Here, as detailed below, various VA examinations have included both active and passive motion results for the cervical and lumbar spines; while the more recent VA examinations in May 2017 included an explanation why passive motion testing was not necessary, as well as a comment on the effect of weight bearing. The Board also notes that there are no opposite joints to compare the cervical or lumbar spine. As such, the Board finds the VA examinations to be consistent with these requirements. Analysis - Cervical Spine 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 normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees. An evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees. Forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent evaluation. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. Id. Prior to March 2, 2016, the record does not reflect the Veteran's service-connected cervical spine disability was manifested by forward flexion limited to 30 degrees or less. For example, a January 2008 VA general medical examination stated the cervical spine had active flexion to 80 degrees, passive flexion to 45 degrees, and no change with repetitive testing. Thereafter, a November 2008 VA examination showed the cervical spine had active and passive flexion to 30 degrees, which decreased to 20 degrees after repetitive testing. In addition, pain was noted at 20 degrees. Moreover, a thorough review of the other evidence of record, to include medical treatment records, does not reflect the cervical spine had limitation of flexion documented to the extent necessary during this period for a rating in excess of 10 percent to include during flare-ups. The Board further finds that from March 2, 2016, the record does not reflect the Veteran's service-connected cervical spine disorder has been manifested by ankylosis. In fact, VA examinations conducted in March 2016 and May 2017 both explicitly found the Veteran had no ankylosis of the cervical spine. Nothing in the other evidence of record, to include medical treatment records, supports such a finding, nor does the Veteran contend otherwise. For these reasons, the Board finds the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his cervical spine prior to March 2, 2016, or to a rating in excess of 30 percent thereafter to include additional "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. Analysis - Lumbar Spine Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are 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 thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 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. An evaluation of 40 percent is warranted forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Prior to March 2, 2016, the record does not reflect the Veteran's service-connected lumbar spine disability was manifested by forward flexion of the thoracolumbar spine of less than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 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. For example, the January 2008 VA general medical examination noted he had flexion to 90 degrees, both active and passive; extension to 30 degrees, active and passive; right and left lateral flexion both to 30 degrees, active and passive; and left and right lateral rotation to 30 degrees, active and passive. There was no change with repetitive motion testing. Moreover, the examiner explicitly stated the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spinal contour; and he did not have scoliosis, lordosis, or kyphosis. Nothing in the other evidence of record, to include medical treatment records, reflects the Veteran had impairment of the lumbar spine to the extent necessary for a rating in excess of 10 percent. The Board also finds that from March 2, 2016, the record does not reflect the Veteran's service-connected lumbar spine disability has been manifested by forward flexion limited to 30 degrees or less, or ankylosis. In pertinent part, the March 2016 VA examination reflects he had forward flexion to 40 degrees, with no change after repetitive testing; and no evidence of pain with weight bearing. The May 2017 VA examination showed the lumbar spine had forward flexion to 60 degrees, with no change after repetitive testing. On the issue of whether there was evidence on passive motion testing, the examiner stated it was medically contraindicated due to additional potential damage to the injured area. There was no evidence of pain when the joint was used in non-weight bearing. Nothing in the medical treatment records or other evidence of record for this period documents the type of impairment necessary for a rating in excess of 20 percent. For these reasons, the Board finds the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his lumbar spine prior to March 2, 2016, or to a rating in excess of 20 percent thereafter to include additional "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. Additional Considerations The Board notes observes that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides that any associated neurologic abnormalities, including but not limited to bowel or bladder involvement, are to be rated separately under the appropriate Diagnostic Code. Further, the record reflects that the Veteran is already in receipt of separate ratings for radiculopathy of the bilateral upper and lower extremities. However, the record does not reflect the Veteran has disagreed with the ratings assigned for these disabilities, and they are presently before the Board for appellate consideration. Moreover, the record does not reflect he has any associated neurologic impairment due to the service-connected cervical and/or lumbar spine that would warrant a separate compensable rating. The Board also notes that the VA examinations have consistently indicated the Veteran has intervertebral disc syndrome of the lumbar spine. Although the March 2016 VA examination found the cervical spine did not have intervertebral disc syndrome, the May 2017 VA examination did find such manifestations. Therefore, the Board also took into consideration the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes which provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1). In this case, however, the January 2008, March 2016, and May 2017 VA examinations all found the Veteran did not experience incapacitating episodes due to his service-connected lumbar spine disability. The May 2017 VA examination made a similar finding regarding the cervical spine disability. Moreover, the record does not otherwise reflect either disability has resulted in bed rest prescribed by a physician and treatment by a physician during the pendency of this case. The Board is also cognizant of the fact the record reflects the Veteran has taken pain medication during the pendency of this case, and Jones v. Shinseki, 26 Vet. App 56 (2012) held that in assigning a disability rating VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Although the use of medication is not explicitly considered in the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine, there is nothing in the record, to include the Veteran's own contentions, which suggests he would have developed impairment of the cervical and/or lumbar spines to the extent necessary for higher rating(s) in this case but for the use of medication. The Board further notes the Veteran has not contended, nor does the record otherwise reflect, his cervical and/or lumbar spine disabilities presents such an exceptional or unusual disability picture as to warrant consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). In pertinent part, both disabilities are primarily manifested by complaints of pain and resulting functional impairment such as limitation of motion, which are manifestations expressly addressed by the schedular criteria. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Moreover, the record reflects he has been assigned a combined schedular rating of 100 percent during the pendency of this case. Thus, this case does not warrant consideration of a total rating based upon individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for the Veteran's service-connected cervical spine disability prior to March 2, 2016, is denied. A rating in excess of 30 percent for the Veteran's service-connected cervical spine disability from March 2, 2016, is denied. A rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability prior to March 2, 2016, is denied. A rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability from March 2, 2016, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs