Citation Nr: 1815263 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 13-30 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 30 percent for status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels (hereinafter "cervical spine disability"). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to September 1986 and from June 1988 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, granted an increased rating to 30 percent for a cervical spine disability. The Veteran filed a timely notice of disagreement (NOD) in October 2010. Jurisdiction has since transferred to the RO in Phoenix, Arizona. In March 2016, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. In August 2016, the Board found that the issue of a TDIU had been raised by the record and was added to the appeal. The Board remanded the case for further development of the record, including obtaining outstanding records and a VA examination and medical opinion. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels has not been manifested by unfavorable ankylosis of the entire cervical spine or incapacitating episodes having a total duration of at least four weeks within a 12 month period. 2. The Veteran's service connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels have not been met. 38 U.S.C. §§ 1101, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5235-5243 (2017). 2. The criteria for an award of a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1101, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim at issue by notice letters dated in May 2010, June 2010 and December 2016. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, Social Security Administration records, and private treatment records identified by the Veteran have been obtained and associated with the claims file. The Veteran was afforded VA examinations in June 2010, February 2012, and October 2016. The examinations are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that relevant records were reviewed and the examiners personally interviewed and examined the Veteran, including eliciting a history from him, and offered opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claims, including by submission of statements and arguments. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating these claims. Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board has considered the Veteran's claims from January 2010 to the present. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Cervical spine disability The Veteran contends that a higher rating is warranted for his cervical spine disability. The Veteran is currently rated at 30 percent for status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels, effective from May 12, 2010. The Veteran is rated under the General Rating Formula for the spine under 38 U.S.C. §38 C.F.R. § 4.71a, DC 5235. Disabilities of the spine are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, the General Rating Formula for Diseases and Injuries of the Spine. Under the General Formula, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. The Veteran's cervical disability can also be rated using the Formula for Ratings Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula allows for a rating of 40 percent for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula. The Board finds that the Veteran's cervical spine disability does not more nearly approximate unfavorable ankylosis of the entire cervical spine or incapacitating episodes having a total duration of at least four weeks during a 12 month period during the appeal period. A May 2010 MRI of the cervical spine revealed scattered multi-level degenerative changes, a prior C2 fracture, and no central canal stenosis. The Veteran was afforded a VA examination in June 2010. Forward flexion of the cervical spine was limited to 15 degrees after repetitive use, with no evidence of ankylosis. There was fusion noted between C2 and C3, but no sign of IVDS. In August 2010, the Veteran underwent a cervical steroid injection, which provided temporary relief and an improvement in range of motion. He had a repeat injection in December 2010 but treatment records reflect that the Veteran required long-term opiates to control his pain. A November 2011 MRI of the cervical spine revealed misalignment at C2-3, presumably secondary to the 1985 fracture, mild central canal stenosis and moderate bilateral neural foraminal stenosis at C4-5, as well as additional neural foraminal stenosis at multiple levels. The Veteran was afforded a VA examination in February 2012. Forward flexion of the cervical spine was limited to 20 degrees and the examiner found that the Veteran had IVDS of the cervical spine. However, the examiner found that there were no incapacitating episodes in the prior twelve months. In December 2011, May 2012, and June 2012, the Veteran underwent a bilateral medial branch block with fluoroscopy without significant relief from his pain. In August 2012, he was prescribed a new pain medication, which he reported provided good relief without side effects. However, the Veteran continued to experience pain and limited range of motion of his neck. In December 2015, the Veteran reported that he took daily pain medication but had been able to stay functional and limit his need for pain medications by doing daily aquatic exercise. His treating physician found this improved his overall functionality and quality of life and limited his need for stronger pain medications. The Veteran was afforded a VA examination in October 2016. Forward flexion was limited to zero degrees, but the examiner found no ankylosis. The examiner noted that the Veteran had a history of IVDS, but had had no incapacitating episodes. Associated x-rays revealed mild to moderate cervical degenerative changes. The evidence shows that the Veteran's range of motion of the cervical spine is limited to less than 15 degrees of flexion, which is more closely approximated by a 30 percent rating. The Board finds that a preponderance of the evidence does not show that the Veteran's symptoms were so disabling during the appeal period to actually or effectively result in limitation of range of motion such that it is more nearly approximated by ankylosis, even when considering limitation due to pain. As there is no evidence of unfavorable ankylosis of the entire cervical spine, a higher 40 percent rating is not warranted. The Board acknowledges that the Veteran has been diagnosed as having IVDS of the cervical spine. There is no evidence, however, of physician prescribed bed rest of at least four weeks during a 12 month period to warrant a rating of 40 percent under the IVDS diagnostic code. Therefore, there is no adequate evidence of "incapacitating episodes" as defined by VA to the extent that would warrant a 40 percent rating. 38 C.F.R. § 4.71a, DC 5243, Note (1) (2017). In sum, the Veteran's cervical spine disability resulted in impairments that are no more than 30 percent disabling under the General Rating Formula or the IVDS during the entire period on appeal and a higher rating is not warranted. As the preponderance of the evidence is against the claim for a higher rating, the claim must be denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5235, 5243. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1)(2013). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a TDIU due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has the following service-connected disabilities: status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels, rated at 30 percent disabling effective May 12, 2010; residuals of left ankle fracture, rated at 30 percent disabling effective June 9, 2010; occipital headaches associated with his cervical spine disability, rated at 30 percent from October 3, 2016; left upper extremity radiculopathy associated with his cervical spine disability, rated at 20 percent from July 13, 2010; tinnitus, rated at 10 percent from October 21, 2004; and hearing loss, rated as noncompensable. His combined disability evaluation is 40 percent prior to June 9, 2010, 60 percent from June 9, 2010, 70 percent from July 13, 2010, and 80 percent from October 3, 2016. Therefore, the statutory criteria set forth in 38 C.F.R. § 4.16(a) are not met prior to June 9, 2010. If a Veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director, Compensation Service, for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Subsequent to June 9, 2010, the Veteran meets the statutory criteria set forth in 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The preponderance of the evidence establishes that the Veteran is capable of obtaining and maintaining sedentary employment during the entire appeal period. On his VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that he last worked in May 2010 as an airline pilot and that his cervical spine disability prevented him from securing or following substantially gainful employment. The Veteran also reported having four years of college. See July 2010, December 2010, September 2011, and January 2017 VA Form 21-8940. Effective June 2010, the Veteran was on unpaid leave. See June 2010 letter of R.M. Treatment records reflect that in May 2010, the Veteran sought treatment for his worsening cervical neck pain. His doctor prescribed muscle relaxers, steroids, anti-inflammatory medication, and opiates for his pain. Due to the Veteran taking opioids to treat his pain, he was no longer able to operate a plane. However, his physician noted that he was able to sit, stand, and walk, with minimal to no climbing, bending, or reaching above shoulder level during an eight-hour work day. See June 2010 Disability Claim. The Veteran's physician noted that an MRI of the Veteran's neck and shoulders showed a marked decline and that as a result, he did not believe the Veteran could return to work at that time, as doing so would further exacerbate and deteriorate the areas and would likely result in surgical intervention. See June 2010 letter from G.M. Wellness Center. In a June 2010 letter, a second physician noted that the Veteran had been doing well in terms of his neck but began experiencing increased pain in May, as well as having some shoulder problems. The Veteran was referred to pain management for his neck and to orthopedics for his shoulders. His physician noted that the Veteran was unable to return to work as a pilot due to the pain medication, but was hopeful that the Veteran would be able to return to work in September 2010 after weaning off the pain medication. See June 2010 letter of Dr. J.V. The orthopedist who saw the Veteran for his shoulder noted that given the length of time that his shoulder had bothered him, he could need surgical treatment. Furthermore, in terms of his work as a pilot, the Veteran's left shoulder would limit that ability, but there was not specific medical contraindication to him continuing to work, except as limited by pain. See June 2010 treatment records of Dr. A.F. A June 2010 VA examination report reflects that the Veteran had severe restriction of range of motion of the cervical spine, as well as severe pain and stiffness. Due to this, the examiner opined that the Veteran was unable to work as an airline pilot. In July 2010, the Veteran's physician noted that the Veteran reported having taken himself out of the cockpit because of his cervical spine condition as well as his shoulders. The physician agreed with the Veteran's decision not to fly until the Veteran could improve range of motion and wean off of the narcotic pain medication, but that the Veteran neck and shoulders could require surgical intervention. See treatment records from St. Peters Bone & Joint Surgery. In December 2010, the Veteran's physician noted that the Veteran continued to experience pain and limitation of motion in his neck. The Veteran reported needing constant aid of another in performing most of his daily tasks and spending over 18 hours a day in bed due to pain and limitation of motion. The physician noted that the Veteran was unable to return to work due to his severe limitations in the use of his neck and shoulder. See December 2010 letter of Dr. J.V. A March 2011 Physical Residual Functional Capacity Assessment noted a primary diagnosis of degenerative joint disease of the cervical spine and secondary diagnoses as left shoulder rotator cuff tear, right should degenerative joint disease with impingement, and history of left ankle fracture. The examiner noted that the Veteran voluntarily removed himself from piloting because of increasing neck and shoulder pain along with immobility of his head and neck. The Veteran reported that his wife helped him with dressing, bathing, hair care and shaving, and that his wife prepared the food due to his dizziness. Furthermore, he reported only driving if he had been off pain medication from 12 hours and that his pain medication kept him from concentrating. The examiner found that the could perform a limited light rating of work with standing/walking limited to two hours, but that he was unable to return to his past work. However, given his age, education, skill level, and non-transferable work, the Veteran was found to be disabled for Social Security purposes as of May 2010. A February 2012 VA examination report reflects that the examiner considered the Veteran's service-connected cervical spine disability and left ankle fracture. The examiner found that the Veteran's left ankle caused him minimal occasional pain, but his cervical spine disability caused loss of range of motion and pain which affected his ability to do some mild activities of daily living and made it hard to do some of the moderate level activities of daily living. The Veteran reported some occasional numbness in his fingers, which did not result in any impairment. The examiner found that the Veteran's ankle did not affect the Veteran's ability to do physical work, although his cervical spine excluded physical labor due to loss of range of motion. However, neither the ankle nor cervical spine disabilities affected his ability to maintain gainful employment at the sedentary level. Furthermore, even though the Veteran was on chronic narcotics, the Veteran did not report physical or cognitive effects due to the narcotics. Treatment records reflect that the Veteran continued to experience pain in his neck and shoulders, and that he underwent injections which provided some relief. In August 2012, the Veteran reported that his narcotic pain reliever was making him sleepy and his medication was switched. The Veteran subsequently reported having no side effects. See August 2012 through May 2014 private treatment records. In August 2014, the Veteran underwent left shoulder arthroscopic rotator cuff repair, and it was noted that he had missed two months of his physical therapy after surgery due to traveling on an extensive vacation. In December 2015, the Veteran's physician noted that the Veteran continued to experience chronic neck and shoulder pain for which he took daily pain medications. However, the Veteran had been able to stay functional and limit his need for pain medications by doing daily aquatic exercises. The physician felt this exercise improved the Veteran's overall functionality and quality of life and limited his need for stronger pain medications. See The CORE Institute treatment records. In March 2016, the Veteran testified that due to the severity of his cervical spine disability, he had to take pain medication which made it difficult to drive and he had to use a cane so that he did not fall. He further stated that his cervical spine disability made it difficult to sleep, he could not drive, he could not get to work, he could not function, stand or sit for very long, and that his lack of mobility made his life difficult. An October 2016 VA examination report reflects that the examiner concluded that the Veteran would have difficulty performing jobs that required full neck range of motion and more than mild amounts of lifting. During flare-ups, he would have difficulty with prolonged sitting and standing. The examiner noted that the Veteran reported that his pain medication made him dizzy and that he would be unable to perform his occupation as an airline pilot while on prescription pain medication. The examiner found that the Veteran's cervical spine disability caused or aggravated his mild left upper extremity radiculopathy and headaches. The headaches were not frequently prostrating or prolonged occurring more than twice per month. However, the examiner found that the Veteran should avoid occupations in which loud noises and bright lights were involved, and that he should have the ability to take a break if a headache occurred. In summarizing the totality of the lay and medical evidence, the Board finds that although the Veteran may be precluded from flying an airplane due to his service-connected disabilities, he has not been found to be precluded from sedentary employment. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). The Board finds the SSA determination to be probative although not necessarily dispositive. In this case, the SSA records provide evidence against the Veteran's claims because they show that he was disabled due to both his service-connected cervical spine and ankle disabilities as well as his non-service-connected left and right shoulder disabilities. The evidence reflects that the Veteran takes prescription pain medication for his neck and shoulder pain. However, although earlier treatment records and the SSA report reflect that this pain medication may have made him dizzy or sleepy, later treatment records reflect a change in medication and that the Veteran denied to his treating physicians that he was experiencing side effects. Additionally, the fact that the Veteran is taking pain medication for both his service-connected cervical spine disability and his non-service-connected shoulder disability is additional evidence that the Veteran is not rendered unemployable solely due to his service-connected disabilities. The Board acknowledges the Veteran's testimony that his cervical spine disabilities limit his mobility. However, while the medical evidence reflects that the Veteran's cervical spine disability has limited his range of motion, the Board notes that the Veteran was capable of traveling extensively on vacation. Furthermore, to the extent that the Veteran's lay statements assert that he is unemployable due to his service-connected cervical spine disability, they are afforded little probative value as the Veteran is not shown to possess vocational expertise in order to opine whether his service-connected disabilities completely preclude his ability to secure or follow a substantially gainful occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As discussed above, the June 2010, February 2012, and October 2016 VA examiners have found that the Veteran is prevented from flying an airplane due to his pain medications. However, the examiners have also found that the Veteran's service-connected disabilities do not preclude gainful employment. Even though the evidence reflects some functional impact related to the Veteran's service-connected disabilities, such as the need to take a break or refrain from loud and bright environments, the evidence does not document that the Veteran's service-connected disabilities completely preclude his participation in any form of substantially gainful employment at any time during the appeal period. The Board finds that the preponderance of the evidence does not establish that the Veteran is precluded from securing or following substantially gainful employment as a result of his service-connected disabilities alone, in order to warrant schedular or extraschedular consideration under 38 C.F.R. § 4.16(a) or (b). The Board finds that the preponderance of the evidence is against the Veteran's claim and that the benefit of the doubt does not apply. Therefore, entitlement to a TDIU is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for status post-fractured cervical spine with degenerative arthritis in the neck at multiple levels, is denied. Entitlement to TDIU on a schedular and extraschedular basis is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs