Citation Nr: 1826697 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-32 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine prior to May 5, 2011, and in excess of 30 percent from May 5, 2011. 2. Entitlement to an effective date earlier than May 5, 2011, for the assignment of a 20 percent rating for radiculopathy of the left upper extremity. 3. Entitlement to an initial combined rating in excess of 50 percent. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to December 1990. This matter comes to the Board of Veterans' Affairs (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's appeal of the assigned 30 and 10 percent ratings for his service connected degenerative disc disease of the cervical spine has been appropriately characterized as an increased rating issue despite the fact that the Veteran requested an earlier effective date for the assignment of the 30 percent rating. That is due to the fact that the Veteran appealed the initial grant of service connection for that disability and the analysis involves staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. For the appeal period prior to May 5, 2011, the Veteran's degenerative disc disease of the cervical spine has been characterized by forward flexion of the cervical spine to 45 degrees without pain and a combined range of motion of the cervical spine of 205 degrees; at no point prior to May 5, 2011, has that disability been characterized by ankylosis of the entire cervical spine, or IVDS with incapacitating episodes. 2. For the appeal period from May 5, 2011, the Veteran's degenerative disc disease of the cervical spine has been characterized by forward flexion of the cervical spine to 10 degrees; at no point from May 5, 2011, has this disability been characterized by unfavorable ankylosis of the entire cervical spine, or IVDS with incapacitating episodes. 3. The date that entitlement arose for the assignment of a 20 percent disability rating for service-connected left upper extremity radiculopathy is not shown by the weight of evidence to be any earlier than May 5, 2011. 4. The Veteran's service-connected disability evaluations combine to an overall 50 percent rating under the Combined Ratings Table. CONCLUSIONS OF LAW 1. At no time prior to May 5, 2011, have the criteria for a disability rating in excess of 10 percent for degenerative disc disease of the cervical spine been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5242 (2017). 2. At no time from May 5, 2011, have the criteria for a disability rating in excess of 30 percent for degenerative disc disease of the cervical spine been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5242 (2017). 3. An effective date earlier than May 5, 2011, for the assignment of a 20 percent rating for radiculopathy of the left upper extremity is not warranted. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). 4. The Veteran's overall disability rating is properly calculated using the Combined Ratings Table. 38 U.S.C. §§ 1155, 1157 (2012); 38 C.F.R. § 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings for Degenerative Disc Disease of the Cervical Spine A. Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do no give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (2017). Staged ratings are, however, 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. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating any musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran's degenerative disc disease of the cervical spine is presently rated according to the General Rating Formula, which contemplates diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2017). Under Diagnostic Code 5242, a 10 percent rating is assignable for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assignable for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. The maximum 100 percent rating is warranted for with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. Id at Note (1). 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 or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id at Note (5). Under Diagnostic Code 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the Formula for Rating IVDS, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a rating of 10 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Id. For purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. B. Facts and Discussion 1. Rating Greater than 10 Percent Prior to May 5, 2011 The pertinent medical evidence in this appeal consists of VA examination reports dated in April 2008 and May 2011. There are no relevant medical treatment records on file and no indication that there are any outstanding medical records that should be obtained. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159. In this regard, VA asked the Veteran in a January 2008 letter to submit or inform VA of relevant medical treatment that he has received. Nothing has been received to date. The most recent medical treatment records on file are dated prior to the Veteran's November 2007 claim for service connection and they relate to the Veteran's cervical spinal fusion that was performed in March 2007. The last record on file is a post operative follow up record dated in July 2007. Both the Veteran and his spouse have submitted statements to the effect that the Veteran has a high tolerance for pain and he does not readily seek medical care except in extreme circumstances. Also, the Veteran informed VA in January 2008 that he had no additional evidence to submit in support of his appeal and he asked that the Board proceed with reviewing his appeal. Under these circumstances, the Board has satisfied its duty to assist the Veteran in developing evidence pertinent to his claim and will proceed with reviewing the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he should be rated at the 30 percent level for his service-connected cervical spine disability beginning on the effective date of service connection, that is, from November 2007. He explains that his cervical spine disability has remained the same in severity since he filed his claim for service connection in November 2007. Notwithstanding the Veteran's contention above, findings from the April 2008 VA examination report do not support the criteria under Code 5242 for a higher than 10 percent rating. As noted, in order to meet the criteria for a 20 percent rating, the evidence must show forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The April 2008 VA examination report shows that the Veteran had forward flexion to 45 degrees, combined range of motion of the cervical spine to 205 degrees (forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees per side, right lateral rotation to 50 degrees, and left lateral rotation to 55 degrees); and he did not have muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Regarding functional loss, the April 2008 VA examiner reported that there was no pain on movement and no loss of range of motion after three cycles of movement. The examiner went on to note that there was no fatigue, stiffness, weakness, spasms, pain or flare ups. In short, the evidence does not support a higher rating under Diagnostic Code 5242 for functional loss. 38 C.F.R. §§ 4.40, 4.45 and 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Also, while the April 2008 examiner did report that the Veteran had ankylosis of the cervical spine, he reported that it was partial ankylosis and in a neutral position. Thus, the fact that the ankylosis is partial means that the criteria for a higher rating of 30 percent under Diagnostic Code 5242 have not been met since that criteria require favorable ankylosis of the entire cervical spine. As noted, the Veteran's radiculopathy of the left upper extremity is separately rated and is discussed below. No objective neurological abnormalities were found during the April 2008 examination. Rather, neurological findings as noted were unremarkable and the examiner reported that the Veteran's neurological complaints had completely resolved following his March 2007 cervical spine surgery. Accordingly, assignment of a separate rating for neurological abnormalities other than radiculopathy of the left upper extremity is not warranted. Lastly, a higher rating is not warranted under the criteria for IVDS. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6. Although the VA examiner in April 2008 reported that the Veteran had IVDS, he reported only one incapacitating episode that lasted approximately one month following the Veteran's March 2007 cervical spine surgery. This episode occurred prior to the Veteran's November 2007 claim for service connection. While the Board has considered the Veteran's assertion that his cervical spine disability has not changed since he initially filed his claim for service connection in November 2007, the Board must base its decision on the evidence before it and on VA's Schedule for Rating Musculoskeletal Disorders. Per the discussion above, the examination findings in April 2008 do not more closely approximate the criteria for a higher than 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Moreover, the Veteran has not provided any specific assertions regarding inaccurate findings on the April 2008 VA examination report and the Board has no reason to doubt the accuracy these findings. Accordingly, the Board concludes that the April 2008 VA examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the foregoing, the Board finds that the evidence does not warrant a rating in excess of 10 percent for the Veteran's cervical spine degenerative disc disease at any point prior to May 5, 2011. 38 C.F.R. § 4.71a, Diagnostic Code 5242. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application and the claim is denied. 38 U.S.C. § 5107. 2. Rating Greater Than 30 Percent from May 5, 2011 The criteria for a higher than 30 percent schedular rating require: 1) unfavorable ankylosis of the entire cervical spine, 2) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months due to IVDS, or 3) any associated objective neurologic abnormalities for which a separate evaluation might be warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. Although the Veteran was noted at the May 2011 VA examination to have ankylosis of the cervical spine, it was noted to be in a neutral position. Ankylosis in the neutral position always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5). This finding does not satisfy the criteria for a higher, 40 percent, schedular rating requiring unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A higher than 30 percent rating is also not warranted under the criteria for IVDS. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6, Diagnostic Code 5243. In this regard, the April 2008 VA examiner stated that the Veteran did not have any incapacitating episodes over the last 12 months. Furthermore, as noted, the Veteran's radiculopathy of the left upper extremity is separately rated and no additional objective neurological abnormalities have been observed except for decreased light touch of the left index finger. This sole finding is reflected in the Veteran's present rating for radiculopathy of the left upper extremity. Accordingly, assignment of a separate rating for neurological abnormalities other than radiculopathy of the left upper extremity is not warranted. In sum, there exists no basis for an evaluation in excess of 30 percent for degenerative disc disease of the cervical spine, or for any separate evaluations other than left upper extremity radiculopathy from May 5, 2011. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application and the claim is denied. 38 U.S.C. § 5107. II. Earlier Effective Date for a 20 Percent Rating for Radiculopathy of the Left Upper Extremity Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. . A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). This includes eliminating the provisions of 38 C.F.R. § 3.157 which allowed for VA reports of hospitalization or examination and other medical records which could be regarded as informal claims. Id. Here, the Veteran filed his claim for service connection well before March 24, 2015, so the regulations regarding informal claims are for consideration. The Veteran filed an initial claim for service connection for a cervical spine disability (claimed as a disability involving the left arm and shoulder) in November 2007. In May 2012, the RO granted service connection for degenerative disc disease of the cervical spine and assigned a 10 percent rating effective the date of the Veteran's November 2007 claim. He was assigned a 10 percent rating under Diagnostic Codes 5003 and 5242 which contemplate limitation of motion of the cervical spine. Also in May 2012, the RO assigned a separate rating of 20 percent for left upper extremity radiculopathy as an associated objective neurological abnormality of the Veteran's cervical spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. This disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515, for paralysis of the median nerve. Under Diagnostic Code 8515, a 20 percent rating is warranted for incomplete paralysis of the median nerve of the minor extremity that is mildly or moderately impaired. This rating was made effective on the date that the Veteran underwent a VA examination on May 5, 2011. 38 C.F.R. § 4.124a. In disagreeing with the effective date of May 5, 2011, the Veteran asserts that his cervical spine disability has remained the same since he filed his initial claim for service connection in November 2007. Thus, he says that he is entitled to an effective date back to November 2007 for the 20 percent rating. However, the evidence does not support entitlement to this rating prior to the May 5, 2011, VA examination. The only medical evidence that is dated during the period from the Veteran's November 2007 claim for service connection to May 5, 2011, is an April 2008 VA examination report. In that report the examiner noted that the Veteran had a history of bilateral C5-C7 radiculopathy, which had subsequently resolved following spinal fusion surgery in March 2007. He remarked that a neurological examination was unnecessary since the Veteran's neurological complaints had resolved completely following the surgery. He nevertheless provided neurological results which were essentially unremarkable. It is not until the May 5, 2011, examination that the Veteran reported a history of intermittent pain and radiculopathy with remissions. He explained that he had had some relief from radiculopathy since undergoing cervical spine fusion in 2007, but that he continued to have intermittent numbness and tingling. Findings on examination were positive for decreased light touch in the left index finger and fifth finger. While the Board has carefully considered the Veteran's assertion that his neurological symptoms in his left upper extremity have been continuous since filing his November 2007 claim, the Board affords more probative value to the April 2008 VA examination report which contradicts that assertion by showing normal neurological findings and noting that the Veteran's neurological symptoms had completely resolved following cervical spine fusion in March 2007. That examination was completed by a neutral doctor following examination of the Veteran. Moreover, while the Veteran and his wife have explained that he did not usually seek medical care unless under extreme circumstances, the fact remains that there were no treatment records whatsoever showing neurologic complaints or findings associated with the Veteran's cervical spine disability, including the left upper extremity, during the period from November 2007 to May 5, 2011. The Board finds that May 5, 2011, is the date that the Veteran is shown to have first satisfied the criteria for a separate 20 percent rating under Diagnostic Code 8515 for his cervical spine disability based on associated left upper extremity radiculopathy and that is the date that entitlement arose. As that date is later than the date of the Veteran's November 2007 claim, it is the proper effective date. 38 C.F.R. § 3.400. Accordingly, the Veteran's claim for an effective date earlier than May 5, 2011, for a separate 20 percent rating for left upper extremity radiculopathy associated with degenerative disc disease of the cervical spine is denied. In reaching that decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning an effective date before that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56. III. Higher Combined Rating The Veteran asserts that his combined rating as of May 5, 2011, should be 60 percent rather than the assigned 50 percent rating. He appears to base his assertion on the fact that his service-connected disabilities, when added together, equal 60 percent. That is based on his service connected degenerative disc disease of the cervical spine rated at 30 percent, radiculopathy of the left upper extremity rated at 20 percent, and asthma rated at 10 percent. However, the law provides that combined ratings are not governed by a mathematical calculation by simply adding together the ratings of all of the service-connected disabilities. Rather, VA is directed by law to provide for evaluations based on the combination of ratings for multiple service-connected disabilities by way of the Combined Ratings Table at 38 C.F.R. § 4.25. Under the Combined Ratings Table at 38 C.F.R. § 4.25, the Veteran's 30 percent rating for degenerative disc disease of the cervical spine and 20 percent rating for left upper extremity radiculopathy combine to 44 percent. The 44 percent rating and his 10 percent rating for asthma combine to 50 percent. Thus, the 50 percent combined rating assigned by the RO is correct under the current law. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs, and is without authority to revise them. 38 C.F.R. § 19.5. Consequently, the Board does not have any authority to calculate the Veteran's overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25. ORDER Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine prior to May 5, 2011, is denied. Entitlement to a rating in excess of 30 percent for degenerative disc disease of the cervical spine from May 5, 2011, is denied. Entitlement to an effective date earlier than May 5, 2011, for the assignment of a 20 percent rating for left upper extremity radiculopathy is denied. Entitlement to a higher overall combined disability rating is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs