BVA9506867 DOCKET NO. 92-09 809 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for the residuals of a cervical spine injury with arthritis, currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran had active service from January 1964 until May 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 1990 from the Newark, New Jersey, Regional Office (RO). In May 1993, the Board remanded this case for further development. Subsequently, the RO confirmed and continued the prior rating action in August 1994. CONTENTIONS OF APPELLANT ON APPEAL The appellant and his accredited representative contend that he should be granted an increased rating for the residuals of a cervical spine injury. Essentially, it is maintained that the severity of the cervical spine pathology has increased as manifested by C5-6 radiculopathy and neuropathy in the left upper extremity. It is also pointed out that he has restricted range of motion of the cervical spine and his grip strength of the left hand has diminished. The veteran's representative asserts that according to criteria outlined under 38 C.F.R. Part 4, Diagnostic Codes 5293 and 5295, an increased evaluation is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased evaluation for the residuals of a cervical spine injury with arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Physical examination of the cervical spine revealed that there was moderate limitation of motion with mild radiculopathy. 3. Clinical signs and manifestations associated with the veteran's cervical spine injury residuals are not shown to be more than moderate in severity. CONCLUSION OF LAW The schedular criteria for a rating in excess of 20 percent for the residuals of a cervical spine injury with arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.3, Part 4, Diagnostic Codes 5290, 5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the appellant has submitted a well-grounded claim and, if so, whether the Department of Veterans Affairs (VA) has assisted the appellant in properly developing his claim. A "well-grounded" claim is one that is not implausible. The appellant's claim appears to be reasonably based. A review of the evidence further indicates that all relevant facts have been properly developed and that there is sufficient evidence upon which to fairly resolve the issue raised by the instant case. Therefore, another remand in order to permit additional development of the record is unnecessary. A historical review of the veteran's service medical record reveals that the veteran was hospitalized after being involved in a December 1966 vehicular accident. A December 1966 radiographic report of the cervical spine revealed approximately 2-3 millimeters (mm.) of anterior subluxation of the C5-C6 vertebrae. There was a loss of the usual cervical lordotic curve probably secondary to muscle spasm. A fracture of the cervical spine was not identified. The physical examination reflected a 2 mm. slight subluxation of the C5-C6 vertebrae. This was reportedly reduced on immobilization of the neck and was stable in flexion, extension, and rotation. There was mild mid-neck tenderness; however, there were no neurological findings. The diagnosis was fracture subluxation of the C5-C6. A January 1967 X-ray report revealed that the vertebral body height and alignment (anteriorly and posteriorly) appeared within normal limits. The neural foramina appeared normal. There appeared to be slight soft tissue swelling anterior to the C5, C6, and C7 vertebraes. The February 1967 separation examination report noted the injury as fracture, dislocation of the vertebral column and fracture subluxation of the C5-6; with no artery or nerve involvement, asymptomatic. A rating decision dated in August 1967 granted service connection for the residuals of a cervical spine injury with arthritis and assigned a 10 percent rating. A VA orthopedic examination dated in October 1969 was essentially normal. The X-ray report revealed a small spur at the anterior inferior angle of the 5th cervical body. Otherwise, the vertebrae were normal. The January 1970 neurological examination revealed that the range of motion was within normal limits and the upper extremities were well developed. VA outpatient records developed between 1973 and 1978 reflect that the veteran continued to complain of neck pain and received pain medication. He continued to have full range of motion of the neck and a X-ray report noted mild osteoarthritis in the lower cervical area. A VA orthopedic examination report dated in March 1983 reflects that the veteran had full range of motion of the cervical spine and there was no evidence of muscle spasm. An X-ray of the cervical spine showed minimal osteoarthritis in the lower cervical spine. A medical certificate dated in July 1984, shows that the veteran received a private orthopedic evaluation in May 1983. No pertinent details of the examination were given. VA outpatient records developed between 1980 and 1984 show that the veteran continued to present complaints and receive treatment for neck and upper back pain. A VA physical examination dated in September 1984 revealed that there was normal range of motion of the cervical spine with no crepitation or muscle spasm. An X-ray performed at an outside private medical institution and reviewed by a VA examiner revealed straightening and hypertrophic spurring at the inferior angle of the C-5. A medical certificate of a private physician indicates that the veteran was examined in 1983 and 1984. The examiner reported that X-rays revealed osteoarthritis of the cervical spine involving the C4, C5 and C6 vertebrae. A private X-ray report dated in June 1985 (submitted in 1989) indicated a diagnosis of minimal spondylolisthesis of the 5th vertebra. There were no other reported abnormalities. VA outpatient records developed in 1984 and 1985 reflect that the veteran continued to receive treatment for neck pain. VA neurological examinations were conducted in November and December 1985. There was noted sensory impairment to pinprick in the dermatome of the C6, C7 and C8 vertebraes. There was slight muscle spasm of the right and left supraspinatus muscle. There was full range of motion of the cervical spine. The neurological diagnosis was radiculopathy of the C6, C7 and C8 vertebrae on the left due to arthritis of the cervical spine. An X-ray showed degenerative spurring at the C5 level. The disc spaces were intact and the neural foramina were normal in appearance. A rating decision dated in January 1986 increased the disability rating for the residuals of the cervical spine injury to 20 percent disabling. Private medical records developed between June and September 1987 reflect that the veteran continued to complain of back and neck pain. A June 1987 examination report of a private neurologist shows that the veteran complained of pain, numbness, and a tingling sensation in the right hip area and in both hands. The examiner noted there was questionable weakness in the four extremities. It was noted that this may have reflected a lack of effort by the veteran. A July 1987 X-ray report revealed mild lower cervical spondylosis with narrowing of the C4-5 neural foramina. A VA orthopedic examination dated in October 1987 revealed there was full and painless range of motion of the cervical spine. There was no visible or palpable cervical or paravertebral muscle spasm. An X-ray revealed no significant bone or joint abnormality and there were noted to be no significant changes since the March 1983 X-ray. A rating decision dated in December 1987 decreased the disability rating to 10 percent. In February 1988, another statement dated in October 1987 was received from the veteran's private neurologist. The physician reported that he conducted a follow-up examination of the veteran in August 1987. It was noted that the veteran continued to experience back pain that radiated to the sacroiliac region. The veteran continued to receive pain medication. This physician reiterated this in a May 1988 statement. This physician also reported in a September 1988 letter that electromyographic and nerve conduction velocities' studies were performed. These studies reflected that there was no evidence of cervical radiculopathy. A private orthopedist statement dated in January 1988 reported that examination of the veteran revealed tenderness on palpation of the cervical spine. The examiner reported that the range of motion of the cervical spine was decreased secondary to pain. There was no evidence of muscle spasm or neurological deficits. He also reported the results of the July 1987 X-ray. In letters dated in June and July 1989, this physician also reported the results of a June 1989 orthopedic examination. The veteran complained of intermittent pain of the cervical spine that radiated to the shoulder and upper extremities. Physical examination of the cervical spine revealed tenderness and the range of motion was reportedly decreased by 75 percent. There were no neurological abnormalities or evidence of muscle spasm. There was X-ray evidence of degenerative arthritic changes of the C4, C5, and C6 vertebraes. A VA orthopedic examination report dated in September 1989 revealed that the active range of motion of the cervical spine was as follows; flexion 30 degrees; extension 0 degrees; lateral bends on both sides were 15 degrees each; and rotation on each side was 20 degrees. An X-ray revealed mild degenerative arthritic changes of the C4, C5 and C6 vertebrae. There was no evidence of degenerative joint disease. The consensus as to the average normal range of motion of the cervical spine is 65 degrees flexion and 50 degrees extension, with lateral flexion to 40 degrees and rotation to 55 degrees. Physician's Guide for Disability Evaluation Examinations (1985). An October 1989 VA neurological examination report revealed tenderness over the C5 vertebra. The range of motion was reported as flexion at 35 degrees; backward extension to 30 degrees; lateral flexion at 20 degrees; and rotation at 25 degrees. A computerized tomography (CAT) scan was performed in November 1989. It was reported that the view of the C5-6 and C6- 7 levels was limited due to an artifact. It was noted that there was a question as to a small midline disc bulge at the C6-7 level, but it did not appear to be prominent enough to cause cord impingement. At the C5-6 level, the disc contour was within normal limits. There was anterolateral osteophytes with associated central disc formation and mild foraminal stenosis. The C4-5 disc was within the range of normal and there was mild left foraminal stenosis due to osteophytes. At the C3-C4 level there was mild central disc bulging without obvious evidence of cord impingement. A Board decision dated in June 1990 increased the veteran's evaluation to 20 percent. Disability evaluations are based on a comparison of clinical findings with applicable schedular criteria. In this regard, a July 1990 statement from a private examiner reported that nerve conduction and electromyographic studies were performed. The results of the studies were consistent with C5-C6 radiculopathy on the left side. There was no evidence of carpel tunnel syndrome on that side. However, it was noted that mild peripheral neuropathy in the left upper extremity could not be ruled out. The veteran underwent a VA compensation examination in December 1991. It was noted that the veteran's C-file was not available. Neurological examination revealed that there was no tenderness of the cervical spine. There was reported diminution to pinprick in the dermatones of the C5 and C6 on the left. The left hand grip was described as "perfectly allright." The examiner reviewed the veteran's C-file and added a January 1992 addendum. It was noted that the private electromyographic study confirmed the diagnosis of radiculopathy of the C5 and C6. It was also reported that a magnetic resonance imaging (MRI)would be needed in order to rule out a herniated cervical disc. Pursuant to a Board remand, the veteran underwent a VA neurological examination in August 1993. The examination report reflected that there was slight tenderness of the lower cervical spine. The veteran also had some trouble moving his head to the left. There was also reported trouble in bending his head forward and backward. There was marked sensory impairment in the dermatome of the C5 and C6 vertebrae. The left hand grip was described as slightly weak, but he had full use of the left hand. The neurological diagnosis was radiculopathy on the left due to discogenic disease of the cervical spine. A September 1993 MRI of the cervical spine indicates that the images were fairly degraded because of the veteran's size and body habitus as well as due to a motion artifact. The examiner reported that it was difficult to clearly rule out evidence of degenerative desiccation at all cervical levels. However, the cervical discs were otherwise normal in height and configuration with no evidence of focal abnormality. The study demonstrated no obvious evidence of spinal or foraminal stenosis. The spinal cord was intrinsically normal. It was also reported that there were no findings consistent with a history of a fracture at the C5-C6 vertebrae. The examiner noted that this was a limited study that revealed no significant abnormality. In December 1993, the veteran's representative submitted a copy of a June 1992 report of a private physician detailing the results of a June 1992 MRI. There was no evidence of herniation, bulge or extradural defect. The vertebrae showed normal alignment and the vertebral bodies were of normal height and intensity. There was spurring of the anterior inferior margin of the C-5. There was no spinal stenosis and the paravertebral soft tissues appeared unremarkable. The examiner noted in giving the diagnostic impression that there were varying degrees of mild degeneration of all the cervical discs. 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 involved. 38 C.F.R. Part 4, Diagnostic Code 5003 (1993). The veteran's current 20 percent rating contemplates moderate limitation of motion of the cervical spine. Whereas a 40 percent rating requires severe limitation of motion. 38 C.F.R. Part 4, Diagnostic Code 5290 (1993). In this regard, the evidence of motion capabilities of the cervical spine which has been developed during the appeal period is consistent with a finding that more than "moderate" limitation of motion has not been reasonably demonstrated. Further, there is no evidence of muscle spasm or muscle atrophy or other physical findings indicating more than "moderate" impairment of function. In considering the cervical spine disability under Code 5293, a 20 percent rating contemplates moderate symptoms of an intervertebral disc syndrome with recurrent attacks, whereas a higher evaluation of 40 percent requires severe symptoms with recurring attacks and only intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1993). From the standpoint of the neurological manifestations, it is noted that the most recent private and VA MRI studies failed to demonstrate the existence of a bulging disc. While the examiner indicated on that occasion that this was a limited study, such findings as were developed are found to be of particular probative value in assessing whether the over all degree of impairment is reasonably shown to be more nearly consistent with criteria requisite to the assignment of a higher evaluation under any applicable code. There has been noted neurological symptomatology including sensory impairment, mild weakness in the left hand and radiculopathy; however, these symptoms are not shown otherwise than to be consistent with the current evaluation. The Board concludes that based on the manifested symptomatology, a higher evaluation is not warranted under all indicated diagnostic and rating criteria outlined under 38 C.F.R. Part 4, Diagnostic Codes 5290 and 5293 (1993). The Board has also considered the veteran's entitlement to an increased (extraschedular) rating pursuant to the provisions of 38 C.F.R. § 3.321 (1993). However, it is not found that this case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER An increased evaluation for the residuals of a cervical spine disability with arthritis, is denied. JEFF MARTIN 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.