Citation Nr: 1807503 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-08 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Propriety of the reduction in the evaluation of cervical spine strain from 10 percent disabling to noncompensable, to include entitlement to a rating in excess of 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active military service from August 1998 to August 2002. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran was scheduled for a Board hearing in August 2017 but did not appear and has not offered good cause for his failure to do so or requested that the hearing be rescheduled. FINDINGS OF FACT 1. The Veteran's neck pain and tenderness originally attributed to his service-connected cervical spine strain have not improved. 2. The Veteran's cervical spine strain causes pain and tenderness on palpation but no loss of range of motion. CONCLUSIONS OF LAW 1. The reduction of the disability evaluation for the Veteran's service-connected cervical spine strain from 10 percent to noncompensable was not proper, and restoration of the 10 percent rating is warranted. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5237 (2017). 2. A rating in excess of 10 percent for cervical spine strain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for cervical spine strain was granted by the RO in a June 2010 rating decision, and a 10 percent evaluation was awarded effective November 25, 2009. In March 2011 the Veteran filed a claim for an increased rating for his service-connected cervical spine strain. In a May 2012 decision the RO proposed reducing the Veteran's rating to noncompensable. The Veteran was notified of this proposal in a letter dated in May 2012. In the letter, the Veteran was afforded the opportunity for a hearing and was given 60 days in which to submit additional evidence that his compensation payments should be continued at their present level. 38 C.F.R. § 3.105(e). In a September 2012 rating decision the RO reduced the Veteran's disability evaluation for cervical spine strain from 10 percent to noncompensable (0 percent) effective December 1, 2012, and informed the Veteran in a September 2012 letter. The Veteran appealed this decision. Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e) (2017). The May 2012 rating decision and notice letter to the Veteran satisfied these procedural requirements. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO must send the Veteran written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed, the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. Id. Here, the reduction was effectuated in a September 2012 rating decision, accompanied by a notice letter. The effective date of the reduction was December 1, 2012. Thus, the RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. As the procedural requirements for a reduction under 38 C.F.R. § 3.105 (e) were appropriately followed here, the Board may turn to the substance of the claim, namely, whether the evidence shows actual improvement in the rated disability at issue. In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. See Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413, 420 (1993); Tucker v. Derwinski, 2 Vet. App. 201 (1992). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c) (2017). The rating at issue had been in effect for less than 5 years at the time of the reduction. Thus, 38 C.F.R. § 3.344 (a) and (b) are not for application. Nevertheless, in any case to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C.A. § 5107(a) (2012); see also Brown, 5 Vet. App. at 421. Here, the Veteran was originally granted service connection for cervical spine strain following an April 2010 VA examination. At that time, the examiner noted that the Veteran had recently undergone surgery for a herniated disc. The examiner diagnosed cervical strain based on the tenderness that could be palpated in the posterior part of the Veteran's neck. The examiner noted that the Veteran had full range of motion with no excessive pain, lack of endurance, incoordination, or spasms of his cervical spine. The RO granted a 10 percent rating based on objective evidence of localized tenderness not resulting in abnormal gait or abnormal spinal contour under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. The Veteran underwent another VA examination in April 2011 prior to the RO's proposed reduction. At the examination the Veteran reported constant pain in the posterior aspect of the cervical spine with flare-ups of more severe pain. On testing, he had reduced range of motion with pain but no fatigue, weakness, lack of endurance, or incoordination. The examiner diagnosed cervical herniated disc disorder post surgery. In June 2011 the examiner provided an addendum opinion that the Veteran's cervical spine herniation is not a progression of the Veteran's cervical strain diagnosed at the April 2010 VA examination. The examiner stated that cervical strain, if present, would be identified by pain. He stated that herniated disc injuries cause a greater pain and therefore it would be impossible to diagnosis a cervical strain, which is a lesser pain. He stated that any pain that might be due to strain in the cervical spine cannot be identified because of cervical disc symptomatology; therefore, he did not diagnosis cervical spine strain. In April 2012 another VA examiner reviewed the Veteran's file and opined that the Veteran's cervical disc herniation status post cervical fusion is most likely a result of a work injury in 2009 and less likely a result of the cervical strain he sustained in service. The examiner further opined that it is more likely than not that any limitation in motion of the cervical spine is a result of the cervical fusion and radiculopathy and that any increased complaints of pain is a result of the cervical fusion. The examiner opined that it is less likely than not that the Veteran's current symptoms are a result of the cervical strain that he had in service. The Veteran underwent another VA cervical spine examination in December 2013. The examiner opined that it is less likely than not that the Veteran's cervical spine symptoms and limitations are caused by his service-connected cervical spine strain and more likely than not that they are caused by the nonservice-connected cervical disc disease with herniation and history of fusion. The examiner noted that records indicate the Veteran only occasionally saw a chiropractor between 2002 and 2009 without other treatment, prior to injuring his neck at work in August 2009. The examiner stated that it is well-established that cervical fusion can result in loss of range of motion in the neck as well as the other symptoms such as pain that the Veteran experiences. The examiner further explained that cervical strain does not usually result in significant limitation of motion. The Board notes that the evidence suggests that the Veteran's overall back condition may have worsened by the time of and since the rating reduction. However, the evidence further supports that the Veteran has both a service-connected condition, cervical spine strain, and a nonservice-connected condition, cervical disc disease with herniation. At the time the Veteran was originally service-connected for cervical spine strain he had already sustained his 2009 work injury and undergone surgery for a herniated disc. The April 2010 VA examiner, who was aware of the Veteran's surgery for a herniated disc, separately diagnosed cervical strain based on the tenderness that could be palpated in the posterior part of the Veteran's neck, and the Veteran was granted a 10 percent rating based on that tenderness. Subsequent VA examinations focus on the Veteran's cervical disc disease with herniation but do not establish that the Veteran's cervical spine strain has completely resolved. Rather, the June 2011 examiner stated that cervical strain would cause a lesser pain than the Veteran's cervical disc symptomatology and therefore cannot be identified. The April 2012 VA examiner opined that that any increased complaints of pain and limitation of motion is a result of the cervical fusion. Thus, the medical opinion evidence supports that overall worsening of the Veteran's cervical spine disability is due to a nonservice-connected condition; however, the relevant inquiry here is whether there was an improvement in the Veteran's service-connected cervical spine strain. That the Veteran's cervical disc disease with herniation post fusion may have resulted in more pain than that caused by his cervical strain does not equate that there was an actual reduction in the pain caused by his cervical strain. Based on the forgoing, the Board finds that giving the Veteran the benefit of the doubt, the evidence does not support that there has been an actual improvement in the disability level caused by the Veteran's service-connected cervical spine strain. The evidence reflects that at the time he was first awarded service-connected for the condition he reported having neck pain and was found to have tenderness in the posterior part of his neck, and those same symptoms have continued through and since the time of the reduction. Therefore, restoration of the 10 percent rating is warranted. Regarding the Veteran's claim for an increase in his cervical spine disability rating, the Board finds that a preponderance of the evidence is against an increase. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent evaluation is assigned when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, or the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or there is 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. 38 C.F.R. § 4.71a (2017). A 20 percent evaluation is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees, or there is 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 evaluation is warranted when there is forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. Id. In general, the rating criteria take into account pain and other symptoms. In the case of spinal disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). However, the Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (2016). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Consequently in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell, 25 Vet. App. 32. As noted above, the Veteran is service-connected for only cervical spine strain. He has also been diagnosed with cervical disc herniation status post cervical fusion; however a preponderance of the evidence supports that the condition is a separate disability that is not related to the Veteran's service or his service-connected cervical spine strain. Specifically, the VA opinions obtained in June 2011 and April 2012 both support that the cervical disc herniation status post cervical fusion is due to a post-service work injury. Therefore, as the Veteran is only service-connected for cervical spine strain, only the symptoms of that condition are relevant in determining the proper disability rating at issue here. The Veteran's records indicate he has reduced range of motion in his cervical spine. However, a preponderance of the evidence supports that the cause is his cervical disc herniation status post cervical fusion, not his service-connected cervical spine strain. Specifically, the April 2012 VA examiner opined that it is more likely than not that any limitation of motion of the Veteran's cervical spine is the result of his cervical fusion and radiculopathy as is his increased pain, including pain radiating down the arm. The December 2013 VA examiner also opined that it is less likely than not that the Veteran's current symptoms are a result of his service-connected cervical spine strain. The examiner explained that it is well-established that cervical fusion can result in loss of range of motion in the neck but that cervical strain does not usually result in significant limitation of motion. The Board finds that the only symptom of the Veteran's cervical spine strain is pain and tenderness on palpation. The condition does not result in loss of range of motion or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for cervical spine strain. The Board has also considered whether an extraschedular rating is warranted, but finds that it is not. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008). With respect to joint ratings, the regulations and case law mandate consideration of painful motion, and the effects of repetitive motion, weakness, fatigability, swelling, and atrophy. 38 C.F.R. § 4.40, 4.41, 4.44, 4.45, 4.46, and 4.59. Here, the Veteran's only symptom of his cervical spine strain is pain and tenderness to palpation, which is adequately considered by the 10 percent schedular rating assigned. As such, it would not be found the Veteran's disability met the "governing norms" of an extraschedular rating. The appellant has not referred to any deficiencies in either the duties to notify or 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 [appellant] 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). Thus, the Board need not discuss any potential issues in this regard. ORDER The appeal seeking restoration of a 10 percent rating for the Veteran's cervical spine strain is granted, subject to the regulations governing payment of monetary awards. A rating in excess of 10 percent for cervical spine strain is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs