Citation Nr: 1805124 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-04 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for intervertebral disc syndrome (IVDS) of the lumbar spine, currently evaluated as 20 percent disabling from August 1, 2005; and 40 percent disabling from September 1, 2016. 2. Entitlement to an increased disability rating for radiculopathy, left lower extremity associated with IVDS of the lumbar spine, currently evaluated as noncompensable from August 1, 2005; 10 percent disabling from November 14, 2013; and 20 percent disabling from September 1, 2016. 3. Entitlement to an increased disability rating for chronic cervical strain, currently evaluated as 10 percent disabling from August 1, 2005; and 20 percent disabling from April 2, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to July 2005. These matters come before the Board of Veterans' Appeals (Board) from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified during a travel board hearing in October 2012, and a transcript of this hearing has been associated with the record. As discussed in the Board's August 2017 decision, the Veterans Law Judge (VLJ) who presided over his hearing is no longer with the Board, but the Veteran declined further hearing on the matter. In August 2017, the Board remanded these claims for additional development which has since been completed. The Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record contains additional evidence since the most recent Supplemental Statement of the Case, principally consisting of VA examinations with respect to medical conditions unrelated to the above disabilities. The evidence is not pertinent to the claims on appeal, so the Board may proceed to the merits with remand for AOJ consideration of the evidence. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. In a September 2017 written statement, prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw the issues of entitlement to increased ratings for radiculopathy and his back disability (IVDS) because he was satisfied with the most recently assigned ratings. 2. Prior to April 2, 2014, symptoms of the Veteran's cervical spine disability included limitation of forward flexion to 35 degrees and combined range of motion of greater than 235 degrees. 3. From April 2, 2014 to September 22, 2016, symptoms of the Veteran's cervical spine disability included limitation of forward flexion to 29 degrees and combined range of motion of less than 170 degrees. 4. On and after September 22, 2016, symptoms of the Veteran's cervical spine disability include limitation of forward flexion to 15 degrees and combined range of motion of less than 170 degrees during flare-ups. 5. At no time during the appeal period did the Veteran's symptoms from his cervical spine disability include or more nearly approximated ankylosis; he has not had IVDS of the cervical spine during any portion of the appeal period; and he has no associated neurologic abnormalities. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to an increased rating for a back disability (IVDS) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for the withdrawal of the issue of entitlement to an increased rating for a radiculopathy of the left lower extremity have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for a rating higher than 10 percent disabling from August 1, 2005 to April 2, 2014, for service-connected chronic cervical sprain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237, 5242 (2017). 4. The criteria for a rating higher than 20 percent disabling from April 2, 2014, to September 22, 2016, for service-connected chronic cervical sprain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237, 5242 (2017). 5. The criteria for a rating of 30 percent disabling, but no higher, from September 22, 2016, for service-connected chronic cervical sprain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237, 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claims The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104 (West 2014). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204 (2017). A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3) (2017). In a September 2017 written statement, the Veteran indicated his desire to withdraw the back and radiculopathy claims listed above. The withdrawal was requested prior to the promulgation of a Board decision on this matter. Accordingly, there are no allegations of error of fact or law with respect to these claims remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal in this matter. The claims will be dismissed as withdrawn. II. Increased Rating for Neck Disability The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Disability evaluations are determined by comparing a Veteran's present symptomatology with 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.A. § 1155; 38 C.F.R. Part 4. In applying the rating schedule, the Board has considered all applicable regulations, including, but not limited to, 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (pain, weakness, fatigability, etc.). The Veteran's neck disability is rated under 38 C.F.R. § 4.71a, DC 5242-5237. The General Rating Formula for Diseases and Injuries of the Spine (the "Formula") applicable to Diagnostic Codes 5235 to 5243 were provided to the Veteran in the December 2008 Statement of the Case and will not be repeated here. There are also separate criteria for rating Intervertebral Disc Syndrome (IVDS); the Formula for Rating IVDS was also provided to the Veteran in the December 2008 SOC. In any case, the Veteran is not service-connected for nor does he have disc disease of the cervical spine, so these criteria are inapplicable. Medical Evidence: Prior to April 2, 2014 The Veteran underwent a VA examination in August 2005 which revealed forward flexion of 35 degrees due to pain. The combined range of motion at the August 2005 VA examination was greater than 170 degrees. The Veteran attended a March 2007 VA examination, but declined examination of the spine, including range of motion and other objective testing. The examiner documented complaints of chronic neck pain. The Veteran underwent a VA examination in March 2008 at which the examiner noted "limited [range of motion] in flexion extension and lat[eral] rotation" of the cervical spine. The exam was not specifically for the purpose of evaluating the spine, so detailed range of motion findings were not provided. At a December 2010 VA examination, a VA examiner recorded forward flexion of 45 degrees and combined range of motion of 340 degrees. The examiner noted repetitive motion testing was possible and there was no additional limitation of motion after repetitive range of motion testing. The examiner noted that joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Neurological examination revealed no deficits associated with the cervical spine. X-rays were within normal limits. The Veteran reported stiffness, spasms, decreased motion, and numbness associated with his spine condition (the numbness was in his lower extremities and associated with his back condition). In relating his spine symptoms, he primarily noted symptoms associated with his lumbar spine. Private chiropractic treatment records from April 2013 indicate: "Cervical ROM (range of motion) is restricted with poor quality due to pain inhibition and binding. Patient experiences intermittent headaches as well as radicular symptoms into the upper extremities bilaterally where L > R (primarily on left side)." The examiner did not provide objective measurements of range of motion. The private treatment notes from 2010 through 2013 document complaints of mild to moderate pain of the neck, but do not provide range of motion findings. A June 2013 VA examination revealed forward flexion of 45 degrees with no objective evidence of painful motion. The examiner also noted the Veteran was able to complete repetitive motion testing, but with some additional loss of range of motion. After repetitive use testing, forward flexion was still 45 degrees, but combined range of motion was reduced to 245 degrees. The examiner indicated no functional loss and/or functional impairment of the cervical spine. He also indicated there was no muscle spasm, no guarding, normal strength, no atrophy, normal reflexes, normal sensation, and no signs or symptoms of radiculopathy. The Veteran did not have IVDS of the cervical spine. The Veteran reported flare-ups two to three times per month that caused pain with the movement of the head in either a lateral or horizontal rotation movement. The pain was described as "constant" and the Veteran would take medication to relieve the pain. VA treatment records provide no further documentation of the extent of loss of range of motion or functional limitations. The above evidence shows, at worst, a limitation of forward flexion to 35 degrees and combined range of motion limited to, at worst, 245 degrees. The criteria for the next higher rating (20 percent), requires forward flexion of the cervical spine of greater than 15 degrees, but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees. The Veteran does not meet the criteria for any higher rating. Even considering his report of flare-ups in June 2013, those flare-ups only affected lateral and horizontal rotation and it does not appear from the report that the reduction is sufficient to meet the criteria for the next higher rating (i.e., to reduce the combined range of motion from 245 degrees to less than 170 degrees). The Board notes that the April 2013 private records provide some indication of radiculopathy, but those findings were not replicated in any VA examination, including the June 2013 VA examination performed very soon afterward. The Board finds that the evidence is against finding that the Veteran had radiculopathy or any peripheral nerve conditions related to the cervical spine condition during this period. The Veteran has claimed that his symptoms warrant a higher rating. However, in determining the actual degree of disability, contemporaneous medical records and an objective examination by a medical professional are more probative of the degree of the impairment than the Veteran's lay opinions. This is particularly so where the rating criteria require analysis of the clinical significance of medical symptoms, even if the existence of symptoms is observable by a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The greater weight of the evidence is against the Veteran's claim of entitlement to a rating in excess of 10 percent disabling for his neck disability prior to April 2, 2014. Medical Evidence after April 2, 2014 The Veteran's neck disability was rated as 20 percent disabling during this period. Private treatment records from April 2, 2014, indicate forward flexion of 29 degrees and combined range of motion of 133 degrees. A neck (cervical spine) Disability Benefits Questionnaire (DBQ) from September 2016 documents the Veteran's report of flare-ups consisting of "excruciating pain shooting through my neck". The Veteran reported functional loss or impairment consisting of loss of significant range of motion of the neck, intense pain, and popping/grinding when he would move his neck. The examiner measured forward flexion as 20 degrees and combined range of motion as 160 degrees. Forward flexion was further limited to 15 degrees after 3 repetitions and combined range of motion was reduced to 150 degrees. There was objective evidence of pain on all ranges of motion. The examiner indicated that pain caused the additional functional loss. The examiner was not able to describe the reduced range of motion associated with limited functional ability due to pain, weakness, fatigability, and/or incoordination. The examination was conducted during a flare-up. The ranges of motion during flare-ups were described as 15 degrees of forward flexion and 150 degrees of combined range of motion. The Veteran did not have radiculopathy and muscle strength, sensation, and reflexes were all normal. The Veteran did not have other neurologic abnormalities. Most recently, the Veteran underwent a VA examination in September 2017. The examiner documented the Veteran's report that "he was completely satisfied with the outcome" of his appeal. (The Board notes that the Veteran formally withdrew other increased rating claims, but has continued to submit argument in favor of the neck claim.) The Veteran did not report flare-ups and no additional functional loss or functional impairments. The examiner measured forward flexion as 45 degrees and combined range of motion of 305 degrees. There was pain noted on the exam with respect to forward flexion and extension, but it did not result in or cause functional loss. The examiner noted there was no additional limitation after repetitive use testing. The examiner could only speculate regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The Veteran did not have radiculopathy and had normal muscle strength, reflexes, and sensation. The ranges of motion measured during this period varied considerably, from 29 degrees of forward flexion on April 2, 2014, to 15 degrees on September 22, 2016, to 45 degrees on September 16, 2017. The Board notes that the September 2017 VA examination is particularly notable in that it is the first examination in which the Veteran did not report flare-ups and the first time that his forward flexion was measured as greater than 35 degrees since June 2013. Giving the Veteran the benefit of every doubt, the Board finds that the 15 degrees of flexion recorded on September 22, 2016, warrants a 30 percent rating from that date. Although the more recent examination did not replicate those findings, the Board notes that VA policy is for stability in ratings. Therefore, because the evidence shows at worst 29 degrees of forward flexion during the period, a rating in excess of 20 percent from April 2, 2014 to September 22, 2016 is denied. However, the Board will grant a 30 percent rating, but no more, for the Veteran's neck disability from September 22, 2016. III. Duties to Notify and Assist The Veteran has not raised any specific 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 to a duty to assist argument). ORDER The appeal seeking entitlement to an increased disability rating for intervertebral disc syndrome (IVDS) of the lumbar spine, currently evaluated as 20 percent disabling from August 1, 2005; and 40 percent disabling from September 1, 2016, is dismissed. The appeal seeking entitlement to an increased disability rating for radiculopathy, left lower extremity associated with IVDS of the lumbar spine, currently evaluated as noncompensable from August 1, 2005; 10 percent disabling from November 14, 2013; and 20 percent disabling from September 1, 2016, is dismissed. Entitlement to rating in excess of 10 percent disabling from August 1, 2005, to April 2, 2014, and in excess of 20 percent disabling from April 2, 2014, to September 22, 2016, for service-connected chronic cervical strain is denied. Entitlement to rating of 30 percent disabling, but no more, from September 22, 2016, for service-connected chronic cervical strain is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs