BVA9508038 DOCKET NO. 91-44 355 ) DATE ) ) Certified on appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased disability rating for traumatic arthritis of the cervical spine, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Reichelderfer, Associate Counsel INTRODUCTION The veteran served on active duty from February 1948 to February 1974. This case arises for a rating decision of November 1989 from the San Francisco, California, Regional Office (RO). It was Remanded to the RO for further evidentiary development and adjudication. The case is now certified to the Board of Veterans' Appeals (Board) from the Oakland, California, RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his cervical spine disability is more severe that contemplated by the 20 percent rating assigned. He alleges that he was not adequately examined. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against his claim for an increased disability rating for traumatic arthritis of the cervical spine. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Traumatic arthritis of the cervical spine is manifested by no more than moderate limitation of motion. 3. Neither an exceptional nor an unusual disability picture has been presented that would render impractical the application for the regular schedular standards. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for traumatic arthritis of the cervical spine are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.59, Part 4, Diagnostic Codes 5010, 5287, 5290 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, a plausible claim has been presented. The veteran has alleged that his cervical spine was not adequately examined. However, this case was remanded to the RO to conduct an examination, the results of which the Board finds are sufficient to assess his disability. The veteran has not indicated that any other relevant evidence of probative value may be obtained which has not already been associated with his claims folder. Accordingly, the Board finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for a disability classified as "strain, cervical spine" was granted, and a 10 percent disability rating assigned by the RO in a rating decision in October 1979, following a review of the service medical records, and post service examination and treatment records. In a rating decision, dated in November 1994, a rating of 20 percent was granted for "traumatic arthritis, cervical spine" following a review of the report of a Department of Veterans Affairs (VA) examination, dated in August 1994. The veteran contends that his cervical spine disability is more severe than contemplated by the 20 percent disability rating assigned. After a review of the evidence of record, the Board finds that his claim fails. The severity of a cervical spine disability involving traumatic arthritis is ascertained, for VA disability rating purposes, by application of the criteria set forth in Diagnostic Codes 5003, 5010, 5287, and 5290 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994) (Schedule). Under these criteria, Diagnostic Code 5010, which is entitled "Arthritis, due to trauma, substantiated by X-ray findings" requires consideration of Diagnostic Code 5003, which is entitled "Arthritis, degenerative (hypertrophic or osteoarthritis)." Under Diagnostic Code 5003, the disability rating for the joint involved will be made based on the limitation of motion. Therefore, a rating greater than the 20 percent assigned is warranted for ankylosis (bony fixation) of the cervical spine (Diagnostic Code 5287) or for severe limitation of motion of the cervical spine (Diagnostic Code 5290). Functional limitation due to pain must be considered. 38 C.F.R. §§ 4.40, 4.59 (1994). Although the entire record must be considered, because of effective date law and regulations, the most pertinent evidence is those documents created in proximity to the recent claim. See 38 U.S.C.A. § 5110 (West 1991). The report of a VA examination, dated in October 1989, indicates a tender point under the edge of the left trapezius. The report further indicates that there was full range of motion with discomfort on turning extreme right. A radiology report, dated in January 1989, notes an impression of degenerative change of the cervical spine. The report of another VA examination, dated in August 1994, reflects that the veteran indicated that he had persistent cervical pain. On objective examination, there was no point tenderness and there was no palpable deformity or crepitus. The range of motion was extension to 10 degrees, flexion to 45 degrees, lateral rotation to 55 degrees bilaterally, and lateral flexion to 20 degrees bilaterally. A report of X-rays of the cervical spine, conducted in conjunction with the examination, indicates an impression of residual of old trauma and considerable degenerative joint disease. Cervical spine osteoarthritis with traumatic injury and no evidence of cervical radiculopathy were diagnosed. The evidence reflects that the criteria for an increased rating are not satisfied. The report of the 1994 VA examination indicates osteoarthritis as the result of trauma. However, the medical evidence of record does not show ankylosis of the cervical spine. Therefore, an increased rating under Diagnostic Code 5287 is not warranted. The 1994 VA examination report only shows that there was limited motion on forward flexion and lateral flexion, both of which can be characterized as no more than moderate. Additionally, the other motions shown were essentially normal. Similarly, the 1989 examination disclosed no significant limitation of motion or limitation of function due to pain. The veteran has contended that his disability is more severe than currently evaluated. The veteran is competent to so contend. However, the Board has also been presented with the reports of medical professions trained to evaluate disability claims. The Board concludes that the objective reports of trained professionals are more probative of the degree of disability than the veteran's bare claim. We also note that there has been no significant evidence that tends to establish that there is functional limitation due to pain beyond that contemplated by the current evaluation. In essence, the preponderance of the evidence is against the claim. The Board finds that the limitation of motion of the cervical spine is no more that moderate. Accordingly, under Diagnostic Code 5290, the veteran's cervical spine disability is no more than a 20 percent disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5010, 5287, 5290 (1994). The Board also notes that there is no evidence that the cervical disability has resulted in marked interference with employment or frequent periods of hospitalization as to render impractical the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). ORDER An increased disability rating for traumatic arthritis of the cervical spine is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.