Citation Nr: 1804583	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-09 640	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for status-post cervical discectomy with fusion and residual decreased range of motion (cervical spine disability).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his Spouse


ATTORNEY FOR THE BOARD

M. Coyne, Associate Counsel
INTRODUCTION

The Veteran completed active duty service with the United States Army from January 2003 to April 2006.

This matter originally came before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a cervical spine disability and assigned the same an initial 10 percent rating.  The claim was previously remanded in a February 2015 Board decision for completion of additional claim development, and has now been returned to the Board for further adjudication.

In July 2014, the Veteran and his spouse testified via videoconference before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing has been associated with the claims file.


FINDING OF FACT

The Veteran's service-connected cervical spine disability, to include his pain and functional impairment has not been productive of flexion greater than 15 degrees but not greater than 30 degrees, or combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding.


CONCLUSION OF LAW

The criteria for entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected cervical spine disability have not been met.  38 U.S.C. § 1155, (2012); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duty to Assist

As noted above the Veteran's claim was remanded in February 2015; one of the Board's remand directives included scheduling the Veteran for a VA examination.  The Board remanded for this additional claim development because the Veteran had reported that his neck condition had worsened since his last VA examination in February 2013 and the Veteran stated that the VA examiner did not use a device to measure his range of motion.

A review of the record reveals that although a VA examination was requested, the Veteran failed to appear.  Subsequently, a Supplemental Statement of the Case (SSOC) discussing his failure to appear and readjudicating his claim on the available evidence was issued in April 2015.  The Veteran's representative submitted an informal hearing presentation in December 2017 that did not contain an explanation for the Veteran's failure to appear.

Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate.  Title 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement.  More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record.  See 38 C.F.R. § 3.655 (b).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member.  See 38 C.F.R. § 3.655(a).  The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  There are no documented statements in the claims file providing good cause for the Veteran's failure to appear and the Veteran has been sent an SSOC noting his failure to appear for a scheduled VA examination.  Given the foregoing, the Board will proceed to adjudicate the Veteran's appeal in the absence of an adequate VA examination.

Additionally, in 2016, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."  Correia v. McDonald, 28 Vet. App. 158 (2016).  38 C.F.R. § 4.59, which addresses musculoskeletal claims where pain on motion is involved, indicates that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint."  However, the Court went on to indicate that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged."  Id.  The Court's findings in Correia v. McDonald were predicated on the observation that in that it "seemed obvious that VA has determined that range of motion testing is necessary in cases of joint disabilities."  Id.  Although the February 2015 Board remand for a new VA examination pre-dated Correia, the Board notes that there is no evidence of record to suggest that the Veteran would appear for another VA examination as he did not provide any statement with regard to good cause for failing to appear for his most recently scheduled examination.  Accordingly, the Board will proceed to adjudicate the Veteran's claim on the basis of the current record.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott, 789 F.3d 1375, to a duty to assist argument).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396 (2009).

II. Entitlement to an Increased Rating for a Cervical Spine Condition

Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection in date.  See generally Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt.  See 38 U.S.C. §5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).  Accordingly, after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  See id. 

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability.  However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 

Additionally, consistent with the benefit-of-the-doubt principle, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  Moreover, 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) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).

The Veteran is diagnosed with status-post cervical discectomy with fusion and residual decreased range of motion following a cervical vertebrae fracture in May 2004.  A spine disability may be rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) set forth in Diagnostic Codes 5235-5242.  38 C.F.R. § 4.71(a).  Under the rating schedule different rating percentages are assigned based on: (1) forward flexion; (2) combined range of motion; (3) ankylosis; (4) muscle spasm or guarding; and (5) localized tenderness.  See generally id.  Combined range of motion refers to the sum of the Veteran's forward flexion, extension, left and right lateral flexion, and left and right rotation.  38 C.F.R. § 4.71a, at General Rating Formula, Note 2.  As the Veteran is not diagnosed with intervertebral disc syndrome of the cervical spine, alternative rating criteria based on incapacitating episodes will not be discussed.  See generally 38 C.F.R. § 4.71(a).  

A 10 percent rating is assigned for: (1) forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or (2) combined range of motion 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 (3) vertebral body fracture with loss of 50 percent or more of the height.  Id.  A 20 percent rating is assigned for: (1) forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or (2) combined range of motion of the cervical spine not greater than 170 degrees; or (3) 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.  A 30 percent rating requires that the condition be manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine.  Id.  A 100 percent rating requires unfavorable ankylosis of the entire spine (thoracolumbar and cervical).  See id.  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: (1) difficulty walking because of the limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; (2) gastrointestinal symptoms due to pressure of the costal margin on the abdomen; (3) dyspnea or dysphagia; (4) atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Id. at Note 5.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.  

The above criteria are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved.  38 C.F.R. §4.71(a).  Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code.  Id. at General Rating Formula, Note 1.  

As for pain and functional loss of the lower back, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain.  See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  However, the Veteran is already rated in excess of 10 percent for his back disability, which is the minimum compensable rating.  This fact notwithstanding, pain is also relevant to a disability evaluation in excess of the minimum compensable rating if that pain results in demonstrated functional impairment.  Because pain itself does not constitute functional loss, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011); see 38 C.F.R. § § 4.40, 4.45.  Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating.  See generally Mitchell, 25 Vet. App. 32.

Likewise, the Board must also consider any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The Veteran and his spouse provided lay testimony at his July 2014 Board hearing.  The Veteran explained that during active duty service he broke one of his cervical vertebrae, cutting the corner of it off, and he had emergency surgery to remove a disc and fuse the vertebrae back together.  This accident occurred in May 2005.  During service he had to stay home on medical leave for a while with a neck brace and then he started physical therapy.  He completed two sessions before he was deployed to Iraq.  He reported that his cervical spine condition has worsened in severity.  The Veteran stated that he was not sure if his range of motion had reduced but that his pain had increased.  He explained that his cervical spine condition was more painful more often, even with the use of ibuprofen and naproxen, and that his symptoms increased when working on the job.  He also reported an increase in symptoms when the weather changed.  He described limitations on turning his neck to the left or the right, touching his chin to his chest, as well as increased pain looking up and then looking to the sides.  The Veteran reported that at his most recent VA examination, the doctor who had examined him did not use any device to measure his range of motion.

As for how the Veteran's cervical spine condition affected him when he working, the Veteran explained that he installed low-voltage wiring and security camera systems.  This job required him to crawl under houses, and look up and reach a lot.  He also experienced fatigue and had to rest his neck because it hurt.  The Veteran reported that he was self-employed and co-owned his company with another Veteran, and that prior to this he worked in information technology and as a contractor doing installation work for a local cable company.  The Veteran changed jobs and started his company because looking a computer screen for over an extended period of time caused more pain and fatigue in his neck.  He also reported that his cervical spine condition affected his sleeping habits because he could no longer sleep on his stomach, which was previously the way he had always slept before.  The Veteran reported that now he was forced to sleep on his back or his side.  He also explained that his sleep was interrupted.  The Veteran's spouse explained that the Veteran tossed and turned and that he could not get comfortable.  She also explained that for any household chores he could not do, he had friends come over to help him.  As for former hobbies, the Veteran explained that he used to play video games for hours on end and now he only played them for 30 minutes at a time.

The Veteran reported that he experienced radiating pain, and that his left side was weaker than his right side.  He reported that he had more muscle on his right side than his left.  However he stated that his pain was localized to the back area of his neck and his shoulders and that he did not have any issues with his arms, hands, or grasping, lifting, numbness, tingling, or any issues with his arms.  He stated that he had some initial numbness on his right side after the injury but that this went away.  The Veteran explained that he was not currently getting regular treatment for his neck because he did not have health insurance and did not realize he could go to VA for treatment.

Service treatment records document that the Veteran incurred a cervical spine fracture in May 2004 and underwent surgery.  A follow up assessment in July 2004 indicates that examination of the Veteran's gait and station was normal, with normal muscle strength and tone.  Cranial nerve examination was normal.  The Veteran was referred to physical therapy to complete at his own pace, with no lifting over 15 lbs., and no helmets or packs.  It was recommended that he could not return to duty for six weeks.  In September 2004 the Veteran was approved to return to regular duty.  At that time examination of gait and station, muscle strength, muscle tone, and cranial nerves were all normal.  

At an August 2012 VA appointment, the Veteran reported that he had aggravating factors for his neck pain that made it worse like looking down at the floor or sleeping on his stomach.  He reported treating it with ibuprofen a few times a week with good results.  He denied muscle pain or weakness.  In December 2014 the Veteran presented complaining of neck pain which he rated as a 7 on a 10 point scale.  He indicated that his neck pain had increased.  Limited side to side movement and pain on extension was noted; no pain was elicited on palpitation, the Veteran was referred to physical therapy.  Sleep disturbances due to mental health issues were noted, with a December 2014 treatment record noting that the Veteran's sleep improved after a prescription for Celexa.  The Veteran also reported that his wife told him that he snored and that sometimes he stopped breathing.  VA treatment and PTSD examinations of record indicate that chronic sleep impairment is one of the Veteran's PTSD symptoms.  A November 2012 VA treatment records also noted that his tinnitus symptoms were distracting when he was trying to fall asleep at night.

The Veteran was provided with two VA examinations for his cervical spine condition, the first of which was provided in August 2011.  The Veteran did not report flare-ups but did report a history of fatigue with decreased motion, stiffness, and weakness without spasm.  The Veteran reported neck pain of a mild, achy, throbbing nature that worsened when the weather changed.  The Veteran reported that the duration of the pain was hours and the frequency was weekly to monthly.  No abnormal spinal curvatures were observed.  Pain on motion was noted moving the neck to the left or right, but muscle spasm, muscle abnormality, tenderness, and weakness were not observed.  The Veteran's range of motion was flexion to 35 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right lateral rotation to 80 degrees.  The examiner noted objective evidence of pain on active range of motion and after repetitive motion without additional limitation of motion. Sensory testing was normal and diagnostic testing did not reveal arthritis.  The Veteran did not report radiating pain and gait was normal.  The Veteran's combined range of motion was 330 degrees.

As discussed above, another VA examination was provided in February 2013.  At this examination, the Veteran reported that during service he sustained a fracture to his cervical spine and that he currently experienced daily pain in his neck for which he took Motrin.  He denied radiculopathy but reported decreased range of motion.  The Veteran's range of motion was flexion to 40 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 80 degrees.  No objective evidence of painful motion was observed.  Repetitive use testing did not produce any additional lose in range of motion.  Functional loss and functional impairment in the form of less movement than normal was noted, but localized tenderness and muscle spasm were noted to be absent.  Muscle strength, reflexes, and sensory testing were normal.  Diagnostic testing did not reveal any arthritis.  The Veteran did not report flare-ups.  The Veteran's combined range of motion was 260 degrees.  Muscle spasm and guarding was not present.

After a review of the evidence of record, the most relevant of which is summarized above, the Board finds that the criteria for entitlement to an initial rating in excess of 10 percent is not warranted.  The Veteran's cervical spine forward flexion is greater than 30 degrees and has been throughout the appeal period.  Additionally, his combined range of motion for the cervical spine has been greater than 170 degrees throughout the appeal period. Range of motion was not noted to be reduced following repetitive use testing.  Although the Veteran has reported fatigue and increased pain, particular after prolonged or repeated use, he did not report flare-ups at either or his VA examinations of record.  There is no evidence of muscle spasm, guarding, or ankylosis.  Although functional loss was reported and observed at each VA examination of record, the Board notes that the Veteran is already in receipt of a 10 percent compensable rating, and some degree of pain and functional loss is already contemplated by the compensable rating criteria to include limitation in range of motion.  Additionally, although the Veteran has reported that his symptoms have worsened over the course of the appeal period, there are no medical records or more recent VA examinations of record to assess his reported increase in severity, as the Veteran reported that he does not seek regular treatment for his cervical spine condition and he did not appear for his most recently scheduled VA examination.  Accordingly, on the basis of the evidence of record, there is insufficient evidence of entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected cervical spine condition, and an award of entitlement to an increased rating is not warranted here.  38 U.S.C. § 1155, (2012); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

Addressing the sleep impairment reported by the Veteran that mostly consisted of not being able to sleep on his stomach anymore, the Board notes that certain exceptional or unusual circumstances may warrant remand to refer this claim for extraschedular consideration.  38 C.F.R. § 3.321 (b)(1) (2017).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  However, ordinarily only the rating schedule will apply unless there are exceptional or unusual factors which would render application of it impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet App 111 (2008).  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate; if the schedular evaluations are inadequate, the Board proceeds to the second step.  Id.  At the second step, the Board must determine whether the claimant's disability picture exhibits factors described by or related to the "governing norm[s]" set forth by 38 C.F.R. § 3.321 (b)(1), the regulation under which extraschedular ratings are assigned.  Id.  Namely, those governing norms are "marked interference with employment" or "frequent periods of hospitalization."  See id.  If the Veteran's disability picture exhibits these governing norms, the Board proceeds to the third step.  Id.  At the third and final step, the Board refers the Veteran's claim to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, the veteran's disability picture requires the assignment of an extraschedular rating.  Id.

However, in this case, the Board notes that the Veteran is already being compensated for sleep-impairment due to service-connected PTSD.  38 C.F.R. § 4.125 (2017).  Additionally, the schedular criteria for rating the cervical spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptoms of the ailments).  Pain and discomfort caused by holding certain positions for an extended period of time, such as while sleeping on the stomach, are contemplated by the schedular rating criteria.  Therefore, referral of this claim for extraschedular consideration is not warranted.  

Finally, entitlement to a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend and the evidence does not show that his service-connected disabilities render him unemployable or unable to procure substantially gainful employment.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).


ORDER

Entitlement to an initial rating in excess of 10 percent for a service-connected cervical spine disability is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs