Citation Nr: 0417621 Decision Date: 06/30/04 Archive Date: 07/13/04 DOCKET NO. 00-13 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an evaluation in excess of 20 percent for the residuals of a cervical spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from December 1966 to April 1967 and from March 1968 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In this decision, the RO established service connection for degenerative disc disease, C6-7, with traumatic arthritis of the cervical spine, rated 20 percent disabling under Diagnostic Code 5293 from August 2, 1994. By this decision the RO also denied service connection for incomplete quadriplegia and laminectomy of the cervical spine on the basis that the veteran's November 1993 motor vehicle accident, which resulted in central cord syndrome causing partial quadriplegia, was due to his own willful misconduct. In November 1999, the case was transferred to the RO at North Little Rock, Arkansas. This case was remanded by the Board in May 2001, September 2002, and July 2003 for further development and is now ready for appellate review. In a statement dated in June 2004, the veteran's representative asserts that the veteran is entitled to special monthly compensation for the loss of use of the lower extremities. This matter has not been developed for appellate review and is referred to the RO for its consideration. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. Impairment resulting from a motor vehicle accident in November 1993 cannot be clearly dissociated from impairment resulting from the service-connected cervical spine disability resulting from a motor vehicle accident in June 1968. 3. As a result of cervical spine disabilities, the veteran is partially paralyzed and wheelchair bound. CONCLUSION OF LAW With resolution of doubt in the veteran's favor, the criteria for a 100 percent evaluation for the service-connected cervical spine disability are met. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 4.3, Diagnostic Codes (DCs) 5003-5010, 5287, 5290, 5293 (as in effect before and after September 23, 2002), DCs 5235, 5237, 5242, 5243 (effective as of September 36, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran argues, in essence, that impairment resulting from the central cord syndrome of the cervical spine cannot be dissociated from his service-connected cervical spine disability and that if it were not for his service-connected cervical spine disability, he would not have sustained such a severe spinal cord injury in the November 1993 automobile accident. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2003). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2003). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2003). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2003). As a preliminary matter, the Board notes that during the course of this appeal the regulations for rating disabilities of the spine were revised effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (November 19, 2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). The Board has determined that neither the pre-amendment nor the post-amendment versions of the VA Schedule for Rating Disabilities of the spine are more favorable to this veteran's claim. Under the pre-amended DC 5285, a 100 percent disability rating was warranted for the residuals of a fracture of the vertebra with cord involvement, bedridden, or requiring long leg braces. Under the amended (and renumbered) DC 5235, vertebral fracture or dislocation will be assigned a 100 percent disability with unfavorable ankylosis of the entire spine. After reviewing the applicable rating criteria in effect both prior to and since September 23, 2002, and the reported objective findings and subjective complaints, the Board is of the opinion that a 100 percent evaluation is warranted for the service-connected cervical spine disability. The Board places significant probative value on several statements provided by C. Bash, M.D., neuro-radiologist. In a statement dated in June 2004, Dr. Bash noted that it was difficult, if not impossible, to attribute a degree of impairment between the two contributing causes, i.e., impairment due to the service-connected cervical spine injury versus impairmen due to the 1993 cervical spine injury. In the June 2004 statement, Dr. Bash provided the following opinion: It is difficult to apportion a level of residual impairment between the two causes, however given the advanced deterioration and increased Frankle scale of disability at the time of the 1993 injury, I believe that it most likely that this unfortunate veteran's current level of disability resulted from his underlining original injury and his inability to recover from the 1993 accident because of the surgically documented chronic cord conditions such as lack of cord pulsations, adhesions. As well, the chronic residuals of his original injury complicated surgery in that they had to remove C2 thru C7 spinous processes likely due to the extent of his adhesions and prior chronic cord process. All of his old injures (sic) significantly contributed to his current level of disabilities. The Board had remanded this case in May 2001 to obtain medical opinions as to which symptoms and findings were attributable to the service-connected cervical spine disability versus the injury which occurred in November 1993. Based upon review of the comprehensive and extensive reports of VA physicians in January 2002, the Board concurs with Dr. Bash that it is difficult, if not impossible, to attribute a degree of impairment between the two contributing causes and that the pre-existing service-connected cervical spine disability significantly contributes to his current level of disabilities. In a statement dated in June 2004, the veteran's representative argues that if medical experts are unable to apportion the degree of disability between service and non-service connected causes, then all signs and symptoms are to be attributed to the service-connected disability, citing to Mittleider v. West, 11 Vet. App. 181 (1998). As a result of cervical spine disabilities, the veteran is partially paralyzed and wheelchair bound. Inasmuch as impairment resulting from a motor vehicle accident in November 1993 cannot be clearly dissociated from impairment resulting from the service-connected cervical spine disability resulting from a motor vehicle accident in June 1968, the Board concludes that the veteran's service- connected cervical spine disability warrants a 100 percent disabling rating. Finally, during the pendency of this appeal, there was a significant change in the law. Specifically, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law is applicable to all claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). Inasmuch as the Board is allowing the benefit sought on appeal, the veteran will not be prejudiced by the Board's decision even if the notice and duty to assist provisions contained in the new law have not been completely satisfied. Therefore, no further action is necessary under the mandate of the VCAA. ORDER A 100 percent disability rating for a cervical spine disability is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2