Citation Nr: 0006311 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 95-15 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to evaluation greater than 20 percent for residuals of broken neck, status post C1-2 fusion with decreased range of motion from May 7, 1994, to May 11, 1998. 2. Entitlement to an evaluation greater than 30 percent for residuals of broken neck status post C1-2 fusion with decreased range of motion from May 12, 1998. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from December 1981 to December 1984 and January 1990 to May 1994. The veteran also had service with the United States Army National Guard from January 1988 to January 1990. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of this appeal has been obtained. 2. The residuals of broken neck status post C1-2 fusion with decreased range of motion from the period of May 7, 1994, to May 11, 1998, are manifested by limitation of motion of the cervical spine, and pain on motion of the cervical spine. There is functional loss due to pain that includes an inability to stoop or crawl on all fours and an inability to perform fine work with either hand. 3. The residuals of broken neck status post C1-2 fusion with decreased range of motion from May 12, 1998, are manifested by severe limitation of motion of the cervical spine, muscle spasm of the entire cervical spine, and reduced functional impairment due to pain. 4. No unusual or exceptional disability factors have been presented with respect to the veteran's service connected broken neck, status post C1-2 fusion, with decreased range of motion. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability evaluation for the period from May 7, 1994, to May 11, 1998, for residuals of broken neck, status post C1-2 fusion with decreased range of motion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Codec 5290, 5293 (1999). 2. The criteria for a 40 percent disability evaluation from May 12, 1998, for residuals of broken neck, status post C1-2 fusion with decreased range of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5290, 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service connected residuals of neck injury and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Generally, where entitlement to service connection has already been established, and an increase in the disability rating is the issue, the present level of the disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that the veteran's claim for a higher evaluation for residuals of a neck broken neck is an original claim that was placed in appellate status by a Notice of Disagreement (NOD) expressing disagreement with an initial rating award. In such cases, the rule from Francisco, id., is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). The evidence demonstrates that in February 1991 the veteran was involved in an accident that resulted in neck pain. A cervical spine series dated in January 1993 revealed a basilar impression and C1-C2 subluxation of approximately 10 millimeters. A further evaluation including a magnetic resonance imaging (MRI) scan demonstrated a Type I Arnold- Chiari malformation and protruded disc at the C3-C4 areas of the cervical spine. The subluxation at C1-C2 was felt to be stable by flexion extension films. The veteran's complaints included numbness in both hands and incoordination of the lower extremities. In February 1993, the veteran underwent a craniocervical decompression and a far lateral fusion bilaterally at the C1-C2 level of the cervical spine. He was maintained on halo immobilization until June 1993. The veteran experienced essentially an uneventful postoperative course. He noted subjective improvement of coordination in the lower extremities and improvement in feelings of numbness in the upper extremities, with the exception of some residual tingling of the left hand. The veteran was placed on permanent physical profile in June 1993 because of the cervical injury. A Medical Board report dated in August 1993 revealed neurological improvement following surgery. Major problems were intermittent cervical pain and restriction of motion and the veteran had persistent tingling in the left hand. It was noted that a lateral C-spine dated in August 1993 demonstrated a 7 millimeter (mm) anterior subluxation of the arch of C1 in relation to the odontoid of C2; there were changes of the cranial cervical decompression and wiring with fusion of C1-C2 posteriorily. A computed tomography (CT) scan of the cranial cervical junction and upper cervical spine revealed postsurgical changes with fusion of C1 through C2. The diagnoses were residuals of Arnold-Chiari-type malformation, Type I with basilar impression and chronic subluxation of the C1-C2 areas of the spine, aggravated by cervical injury in February 1991, treated by craniocervical junction decompression and posterior C1-C2 fusion in February 1993; as manifested by cervical pain, decreased range of motion, tingling left hand and mild cerebellar ataxia; protruded cervical disc, C3-C4, related to cervical injury, February 1991, stable. The veteran was placed on temporary disability retirement due to the residuals of the neck injury. At a VA examination conducted in July 1994, the veteran reported chronic pain, stiffness, and limitation of motion in the neck. He did not describe any radicular pain from the neck, and there was no neurological loss in the extremities or trunk. He complained of pain in the left second metacarpophalangeal joint since his injury. On examination, a well healed, non tender, non-attached surgical scar was noted over the posterior cervical spine. The veteran complained of tenderness to punch over the mid low cervical area and the cervical paravertebral muscles. No spasm was palpable. Forward flexion of the cervical spine was full; there was 40 degrees of hyperextension, and 10 degrees of lateral flexion rotational movement (bilaterally). The veteran exhibited neck pain with lateral flexion and hyperextension. The neurological examination was normal. The diagnosis was postoperative cervical spine with limitation of motion and history of old cervical fracture. In a rating action dated in August 1994, the RO granted service connection for residuals of a broken neck, status post C1-C2 fusion in an August 1994 rating action. A 20 percent disability evaluation was assigned that became effective in May 1994. The RO's determination was based on the foregoing evidence. The veteran disagreed with the 20 percent evaluation and perfected his appeal. In April 1996, the veteran underwent a trans-oral odontoid resection. It was noted that the veteran had been seen at an outpatient clinic in 1995 with evidence of cervical stenosis- a syndrome of the anterior brachial cruciate syndrome of Bell secondary to impingement of the odontoid following a failed C1-2 fusion. The pre and postoperative diagnoses were cervical stenosis secondary to odontoid impingement. In a Memorandum dated in April 1996, a neurosurgeon associated with the Army stated that the veteran was recovering from a second cervical spine operation. The doctor indicated that the second operation and the original would always cause the veteran to have certain limitations. These limitations include: an inability to turn the neck; an inability to stoop or crawl on all fours; an inability to do fine work with either hand. In May 1996, the veteran was seen on a follow-up basis. It was noted that he was recovering well. When examined by VA in July 1996, the veteran complained of decreased grip strength in the right hand and neck stiffness and pain on a daily basis. Physical limitations included no stooping or crawling on all fours. On physical examination, the examiner observed a well healed non-tender scar in the mild line from the occiput. Forward flexion of the cervical spine was to 45 degrees with extension to 35 degrees. Bilateral rotation was to 35 degrees. Side tilt was to 30 degrees, bilaterally. There was 4/5 grip strength of the right hand. Muscle strength, mass, and tone were normal. Deep tendon reflexes were 2+, and the toes were downgoing. Sensation was intact. The gait was normal. The diagnosis was status post neck injury, postoperative occipital to C-2 fusion, chronically symptomatic with pain and reduced range of motion of the neck and post operative transoral odontoid resection secondary to cervical stenosis with myelopathy. VA X-rays of the cervical spine dated in November 1997 revealed developmental variant versus prior trauma with postoperative changes involving the posterior elements of C1- 2; the axial height of the vertebral bodies and disc spacing were preserved, and the spinal alignment was normal. In May 1998, the veteran was stable with respect to the cervical fusion. It was noted that he had not required the use of a cervical collar since his last visit. Complaints consisted of increased stiffness, pain, and decreased range of motion. It was noted that the veteran had recently been struck in the right temple with a stray baseball and incurred a concussion. A CT scan of the head and neck were normal. A physical examination of the cervical spine revealed marked limitation of motion of the head and neck. The examiner observed no more than 30 degrees of rotation of the head in either direction and similarly impaired flexion and extension. There were no neurological changes found in the limbs. The assessment was post cervical fusion at C1 with marked decreased range of motion. Based on the 1998 outpatient treatment records, the RO increased the veteran's disability evaluation to 30 percent for the service-connected neck disability in a July 1998 rating action. That evaluation became effective in May 1998. At a VA examination dated in January 1999, the veteran complained of constant neck pain and constant stiffness in the neck. Those discomforts were exacerbated by cold weather. The veteran reported that he took Motrin six times per day or Tylenol four to eight times per day for pain and stiffness. It was noted that the veteran was in electronic engineering school. The veteran indicated that he had had difficulty performing work that required crawling or going through small spaces. He denied experiencing any numbness, tingling, or weakness in the upper or lower extremities. There was no bowel or bladder incontinence. On physical examination, there were paraspinal spasms in the cervical area over the entire extent of the cervical paraspinous musculature, bilaterally. Forward flexion of the cervical spine was to 35 degrees. Backward extension was to 20 degrees. Side tilt to the left and right was 20 degrees. The examiner observed normal muscle strength, mass, and tone in the upper and lower extremities. Deep tendon reflexes were 3+. The toes were downgoing. Sensation was intact. The gait was normal. The veteran demonstrated good distal and proximal strength in the lower extremities. The diagnosis was neck injury, postoperative occipital to C2 fusion and postoperative transoral odontoid resection, chronically symptomatic with pain, paraspinal spasm and limitation of motion. The examiner noted that pain with use caused additional mild functional impairment, that the primary limitation was reduced range of motion, that weakened movement, excess fatigability and discoordination did not result in increased functional impairment. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1999). Initially, the RO rated the veteran's service-connected neck disability under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5290. Under that code, a 20 percent disability evaluation is assigned for moderate limitation of motion of the cervical spine, and 30 percent is assigned for severe limitation of motion. The Board notes that 30 percent is the maximum evaluation under that schedular rating. The service-connected neck disability may also be considered under DC 5293. Under that code, a 60 percent evaluation is warranted for pronounced intervertebral disc syndrome manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of diseased disc, with little intermittent relief; a 40 percent evaluation is warranted for severe intervertebral disc syndrome manifested by recurring attacks, with intermittent relief; a 20 percent evaluation is warranted for moderate intervertebral disc syndrome manifested by recurring attacks of symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of the diseased disc; mild intervertebral disc syndrome is evaluated at 10 percent. DC 5293. In evaluating the severity of the veteran's neck disability, the Board must consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The regulation further provides that examinations on which ratings are based must reflect the anatomical damage and functional loss with respect to all these elements. Functional loss may be attributed to several factors, one of which is pain, supported by adequate pathology and evidenced by the visible behavior of the claimant; weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1999). As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed, but not limited to, excess fatigability, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Having reviewed the record the Board finds that the assignment of a higher disability evaluation prior to May 1998 is warranted. The Board recognizes the veteran's history of limitation of motion of the cervical spine. In July 1994, there was full forward extension; however, lateral extension was to 10 degrees with pain, and hyperextension was 40 degrees. In July 1996, in addition to the limitation of motion, the evidence provides that the veteran had additional limitations as evidenced by the Memorandum dated in April 1996 wherein a neurosurgeon stated that because of the operations performed with respect to the veteran's service- connected cervical disability the veteran would always be unable to turn the neck, to stoop or crawl on all fours, and to perform fine work with either hand. The disorder was felt to be chronically symptomatic with pain with reduced motion. Based on these factors, the Board is of the view that the veteran's overall disability more nearly approximates the criteria for the next highest disability evaluation; therefore, the veteran is entitled to a 30 percent disability rating prior to May 1998. 38 C.F.R. § 4.7, 4.40, 4.45. With respect to the evidence since May 1998, the Board notes that the veteran was assigned a 30 percent disability evaluation under DC 5290, which is the highest schedular rating under that code. The Board notes, however that DC 5293 is for consideration. Although there is no evidence of neurological impairment, the veteran demonstrates chronic pain and paraspinal spasm in the entire cervical area as evidenced by the report of a January 1999 VA examination. Therefore, the Board is of the view that the overall level of severity of the veteran's cervical spine disability more nearly approximates the criteria for a 40 percent disability evaluation under DC 5293. 38 C.F.R. § 4.7. The evidence does not establish that the veteran is entitled to a higher disability evaluation either prior to or since May 12, 1998. As noted, there is no medical evidence of neuropathy involving the cervical spine; therefore, the assignment of a higher percent disability evaluation is not warranted. DC 5292. Although there is limitation of motion and spasm (since May 12, 1998) involving the service- connected disability, there are no clinical findings of demonstrable deformity of the vertebral body. Therefore, the veteran is not entitled to an additional 10 percent evaluation as provided by DC 5285. In making this determination, the Board acknowledges its duty to consider the provisions of 38 C.F.R. §§ 4.40 and 4.45 where functional loss is alleged due to pain on motion. DeLuca v. Brown, 8 Vet. App. 202, 207-208 (1995). While the provisions of 38 C.F.R. § 4.40 do not require separate ratings based on pain, the Board is at least obligated to give reasons and bases pertaining to that regulation. Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With respect to the evidence prior to May 12, 1998, the Board considered the functional impairment in the assignment of the 30 percent disability evaluation for the period. As to the evidence since May 12, 1998, the Board notes that the January 1999 examiner stated that reduced range of motion was the primary functional impairment and noted weakened movement, excess fatigability, or discoordination did not cause an increase in the amount of limited motion. In this regard, the functional impairment due to pain has been considered by the Board in raising the assigned evaluation to 40 percent. The Board would point out that the rating schedule contains other diagnostic codes relative to impairment of the spine. However, in the absence of ankylosis (DCs 5286, 5287), those diagnostic codes are not for application in the instant case and do not provide a basis for the assignment evaluations than those provided either before or since May 1998. Moreover, the evidence of record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not asserted or offered any objective evidence that the residuals of broken neck, status post C1-C2 fusion has interfered with his employment status to a degree greater than that contemplated by the regular schedular standards, which are based on the average impairment of employment. Nor does the record reflect frequent periods of hospitalization for the disability. Hence, the record does not present an exceptional case where his currently assigned evaluations are found to be inadequate, respectively. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, in the absence of such factors, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met, and; therefore, affirms the RO's conclusion that a higher evaluation on an extraschedular basis is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 30 percent rating for the period from May 7, 1994, to May 11, 1998, for residuals of broken neck, status post C1-2 fusion with decreased range of motion is granted, subject to the criteria applicable to the payment of monetary benefits. A 40 percent rating since May 12, 1998, for residuals of broken neck, status post C1-2 fusion is granted, subject to the criteria applicable to the payment of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals