Citation Nr: 0001007 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 95-20 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for residuals of a neck injury with an arthritic spur on the cervical spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1957 to August 1960. He also had periods of active duty for training and inactive duty for training from 1975 to 1981. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This case was previously before the Board in December 1997, on which occasion it was determined that the veteran was not entitled to secondary service connection for obstructive and central sleep apnea, for a disorder manifested by a cognitive deficit (also classified as psychological factors affecting a physical illness), and for a neurogenic bladder; and that the veteran was not entitled to an increased rating for his service-connected vascular headaches and for his service- connected recurrent dislocations of the left shoulder. Thus, the Board's December 1997 decision is final; and, as such, further discussion of those aforementioned issues will not be discussed herein. See 38 U.S.C.A. §§ 7103(a), 7104(a) (West 1991 & Supp. 1999). At the time of the Board's decision in December 1997, the case was also remanded to the agency of original jurisdiction for additional development regarding only the issue of entitlement to an increased rating in excess of 10 percent for residuals of a neck injury with an arthritic spur on the cervical spine. See 38 C.F.R. § 20.1100(b) (1999) (The Board's remand of an issue/claim is in the nature of a preliminary order and does not constitute a decision of the Board on the merits as to that issue/claim). Such development having been completed, this issue is once again before the Board for appellate review. In a May 1998 statement, the veteran, through his representative, withdrew his request for a personal hearing. In an Informal Hearing Presentation, dated in November 1999, the representative requests that the Board provide instructions to provide due process on the issues denied in a rating decision of June 1999, and expresses an issue specific dissatisfaction with this multiple-issue rating determination. Notably, however, there is no indication from the information of record that the veteran or his representative has filed a notice of disagreement with the RO with respect to the June 1999 rating determinations. See Nacoste v. Brown, 6 Vet. App. 439, 440 (1994) (holding that the statutory language of 38 U.S.C.A. § 7105(b)(1) requires that a notice of disagreement be filed with the agency of original jurisdiction). Therefore, to the extent the veteran wishes to initiate an appeal of the June 1999 multiple-issue determination, the veteran and his representative are hereby advised that, in accordance with the provisions of 38 U.S.C.A. § 7105(b)(1), the statutory time period for filing a notice of disagreement, in this instance, is due to expire on June 14, 2000; and they are further advised that such notice must be filed with the RO. Id. Accordingly, the Board's appellate review will be limited to the issue listed on the cover page of this decision. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). For consistency and economy, the Board employs the term "cervical spine disability" to represent the service- connected residuals of a neck injury with an arthritic spur on the cervical spine. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this claim has been obtained by the RO, to the extent possible. 2. The evidence of record reflects that the residuals of the neck injury with arthritic spur on the cervical spine are manifest by limitation of cervical spine motion, with discomfort on motion, and by x-ray findings compatible with multi-level osteoarthritis; and are tantamount to moderate limitation of motion. CONCLUSION OF LAW The criteria for a 20 percent evaluation for residuals of a neck injury with arthritic spur on the cervical spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5290 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, a VA Form 119, Report of Contact, dated in March 1999 reflects that 1) Volume III of the veteran's claims folder has been repeatedly searched for and not found; 2) the evidence of record is sequential, so maybe it never came to be; 3) the Veterans Service Organization (VSO) verified that they have never worked with more than two volumes on this veteran; and 4) the VSO verified that prior to this date, evidence was last submitted on December 14, 1998. In light of the foregoing and following a review of the claims folder, the Board views the claims folder as complete. Of note, the claims folder as reviewed for this decision now consists of III volumes. The Board finds that the veteran's claim is plausible and capable of substantiation and is thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Drosky v. Brown, 10 Vet. App. 251, 245 (1997) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 631- 32 (1992)). The Board is satisfied that all relevant facts have been developed. See 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999), the Board has reviewed the clinical evidence of record pertaining to the service-connected cervical spine disability and has found nothing in the record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. See 38 C.F.R. Part 4 (1999). 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. See 38 C.F.R. §§ 4.1, 4.10. Separate diagnostic codes (DCs) identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When 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. See 38 C.F.R. § 4.7. When after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. See 38 C.F.R. § 4.3 (1999). It is the intent of the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, to recognize disabilities of the musculoskeletal system that result in anatomical damage, functional loss with evidence of disuse, and/or abnormal excursion of movement, for example, less movement than normal, more movement than normal, weakened movement or pain on movement. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71 (1999). When a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. Examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Service connection for the cervical spine disability was granted in October 1992, and a 10 percent evaluation was assigned. Since signs of arthritis affect this spinal segment, the cervical spine disability is rated solely on the basis of limitation of motion under DC 5290. See 38 C.F.R. § 4.71a. Under DC 5290, a 10 percent evaluation is warranted for slight limitation of motion of the cervical spine. A 20 percent evaluation is warranted for moderate limitation of motion of the cervical spine. A 30 percent evaluation is warranted for severe limitation of motion of the cervical spine. Id. The record shows multiple evaluations and treatment at private and VA facilities from 1993 to 1999. The diagnoses specific to the cervical spine disability have been consistent with osteoarthritis, cervical degenerative disc disease, and limitation of motion. Between 1993 and December 1994, he received regular evaluations for a chronic neck problem with pain manifested by spasms in the cervical spine region and limitation of motion on extension with a slight increase in cervical range of motion when attending rehabilitation following a motor vehicle accident. The veteran appeared to be restricted to overhead lifts of 15 pounds because of his shoulder and neck problems. He was taking Relafen, a nonsteroidal anti-inflammatory with moderate relief. Records dated in September 1993 and March 1994 reflect that the cervical spine was straight, and that there was tenderness at the base of the occiput and over C(ervical) 7-T(horacic) 1. The only movement limited on range of motion was extension to 30 degrees. X-rays of the cervical spine revealed no gross evidence of significant vertebral body malalignment. There was minimal disk space narrowing at C5-C6, C4-C5, and C3-C4 interspaces. The Atlanto-occipital alignment appears unremarkable. The impressions included minimal disc narrowing at multiple levels and cervical spondylosis. In September 1994, the diagnostic impressions following evaluation included, among other things, a headache disorder, extremely complicated, with much of it related to a myofascial pain, and part of it possibly related to secondary depression and chronic pain in the neck and shoulder related to a work injury. A September 1994 compensation and pension examination for multiple medical complaints reflects that the veteran felt a certain tenseness at the base of his skull and over his vertebrae that was exacerbated by cold weather. He felt as if his neck had a crick in it by history. He denied radiation of discomfort or upper extremity paresthesia. He had given up painting or cleaning overhead because it was too difficult for him to extend his neck backward to view his work overhead. On range of motion of the cervical spine, the only limited movement was backward extension of 0-30 degrees. A private medical record of Dr. Ewing dated in December 1994 reflects a re-exacerbation of the pre-existing neck and shoulder pain due to a motor vehicle accident. The pain and tenderness was at the back of his head and in and around the area of his left occiput. The pain radiated down his back into his shoulder. The Board notes that there are no treatment records related to this accident for review. The veteran asserted through his representative in an April 1996 statement that he was having paresthesias of the right side and a secondary condition of loss of bladder control. Private medical records belonging to Dr. Ewing dated in June 1996 to July 1996 reflect that the veteran was involved in a motor vehicle accident as a front seat passenger, that he had significant spasm and diminished range of motion in his neck and shoulders, and that the pain (as a result of the accident) was similar to the service-connected neck pain in location only. Trigger points were quite pronounced with significant spasm on palpation of the trigger points. Dr. Ewing administered trigger point injections into the neck, shoulder, and into the cervical paraspinous musculature. The veteran noted significant relief of the spasm in his neck and in his shoulders. Dr. Ewing sent him to Colorado Physical Therapy for continued myofascial pain syndrome of the neck and shoulders post motor vehicle accident. The veteran reported on a follow-up office visit that the trigger point injections definitely made his physical therapy go better. Physical therapy notes dated in July and August 1996 from Colorado Physical Therapy, P.C., reflect that the veteran had zero percent loss of active range of motion in the cervical spine with pain at the end of range. He had decreased pain free active range of motion. His pain level was 4/10 (0 to 10 scale) and constant. He was able to perform all light and some moderate activities of daily living/work duties. In August 1996, the veteran reported a 25 to 50 percent improvement and that his level of pain was decreasing. A July 1996 compensation and pension examination revealed that the cervical spine flexed to 70 degrees and was not painful. Cervical extension was 65 degrees and somewhat painful. Lateral flexion was 35 degrees to either side and rotation was 45 degrees to each side without pain. The C6 vertebra was prominent, as though there was a shelf there. A x-ray report of the cervical spine dated in July 1996 compared to those taken in February 1995 showed that there was mild disc space narrowing at C3-C4, C4-C5, and C5-C6. There was approximately 4-5 mm of anterior subluxation of C5 on C6. There was bony proliferation with osteophyte formation at the anterior and posterior aspect of C3, C4, and C6. The alignment of C2 through T1 is otherwise unremarkable. The impression of this x-ray was worsening degenerative change with new subluxation of C5 on C6 which is likely degenerative. Private and VA treatment records dated between August 1996 and October 1996 reflect spasm in the neck and in the shoulders, most of the veteran's pain seemed to be centered around the C7 vertebra, diminished range of motion in the neck and in the shoulder, and trigger points primarily at the base of the skull on the left and in the cervical spinal erector muscles on the right. The following trigger points were injected: greater occipital nerve at the base of the skull on the left, the cervical paraspinous muscles, the superior border of the latissimus muscle with patient reporting significant relief of the spasm of the neck and shoulder, and reduction in pain. The examination reflected decreased range of motion at the neck and at the shoulder. A February 1998 examination by Dr. Thompson, a rheumatologist at Big Thompson Medical Group, P.C., reflects chronic neck and headache pain. Range of motion of the neck was limited to approximately 10 degrees of extension with full flexion. There was muscle atrophy of the cervical paraspinous muscles on the left side with obvious visible and palpable asymmetry. On muscle testing of the neck, there was weakness with lateral flexion to the right. There was tenderness over multiple soft tissue tender points to include the bilateral occipital tender points, the bilateral mid trapezius, and the bilateral sternocleidomastoid. The impressions included osteoarthritis and chronic rotator cuff tendinitis of both shoulders, cervical degenerative disk disease, and fibromyalgia. Dr. Thompson noted that there was definite evidence of muscle damage because the veteran had marked atrophy of the paraspinous musculature. He either had significant muscular damage or more likely, nerve damage, leading to atrophy. The physician opined that it was possible that the fibromyalgia was due to the original injury in 1981 and/or one of its sequelae. Dr. Thompson added that the veteran was more disabled from chronic vertigo, fatigue, and difficulty concentrating, than by mechanical problems related to the cervical arthritis and chronic rotator cuff tendonitis/arthritis of the shoulder. It was his opinion that the veteran was totally disabled due to the combination of these problems. Dr. Thompson reviewed the previous cervical spine x-rays, specifically those taken in June 1996, to conclude that the most recent x-rays are consistent with moderate to severe cervical degenerative disc disease. In accordance with the December 1997 Board Remand, a special VA examination in March 1998 conducted by a Consultant in Rehabilitation Medicine and a Chief of Rheumatology reflects that the veteran's (then) 2 volume claims file was reviewed extensively. The examination reflects that the range of motion of the cervical spine is well preserved with the exception of 0-40 degrees of left cervical rotation. Cervical spine films reveal cervical spondylosis with degenerative disk disease at multiple levels in addition to anterior subluxation of C5 on C6, unchanged since July 1996. Examination of the musculature of the cervical spine region revealed none to minimal cervical paraspinous atrophy without any changes in the condition of the skin or other manifestations that would demonstrate disuse. In addition, neuromuscular testing of the cervical nerve roots involving the upper extremities was intact without gross deficits. It was the opinion of the examiners that the service-connected disability involved primarily the joint structures and did not involve the associated muscles and nerves. The examination did not reveal evidence of weakened movement, excess fatigability, or incoordination after flexion and extension repetitions. It was also noted that there were no obvious (visible) complaints or signs of painful motion with use such as facial grimacing while undergoing these repetitions or further decreased range of motion of these joints. Thus, an overlap exists between the degenerative changes of his cervical spine, post surgical left shoulder, and his current myofascial pain/fibromyalgia syndrome. As best as [the examiners] could determine, limitations of functional ability, particularly during flare-ups of his cervical spine and left shoulder are currently related more to his nonservice-connected myofascial pain/fibromyalgia syndrome than due to his service-connected cervical spine disability and shoulder disability (not currently certified for appeal). The conclusion was based primarily on the DeLuca evaluation of the cervical spine and the left shoulder. The April 1998 fee basis examination performed by Dr. van den Hoven, Orthopaedic Center of the Rockies, reflects that the veteran does not have any radiation of pain nor does he describe any specific numbness or tingling in his hands or upper extremities. The examination of the cervical spine demonstrates normal alignment with the exception of a mild increase in the cervical lordosis. Inspection of the neck indicates slight atrophy in the left posterior cervical paraspinal muscles, presumably due to pain inhibition, with no significant weakness. The neck is otherwise symmetrical. Cervical range of motion is measured as follows: flexion of 50 degrees, extension of 38 degrees, right rotation of 70 degrees, left lateral rotation of 60 degrees, and lateral flexion of 30 degrees bilaterally with mild discomfort. These motions are considered to be mildly to moderately reduced from normal. Dr. van den Hoven noted that the fibromyalgia screen was positive for more than eleven out of eighteen tender points present. The diagnostic impression was degenerative disc and joint disease of the cervical spine of a progressive nature beginning in the 1980s and probably related predominantly to the injuries of record in 1981. He has a 5-mm C5-C6 degenerative spondylolisthesis and C3-C4, C4-C5, C5-C6 disc spaces and joint degeneration with myelogram evidence for truncation of the left C6 root. However, he has no clinical evidence to suggest cervical radiculopathy at this time. The veteran's cervical problems involve predominantly disc and joint structures in the cervical spine with progressive degeneration and some degenerative spondylolisthesis. There is no evidence on clinical examination or on history to indicate that this paraspinal muscle atrophy is caused by any type of specific nerve root entrapment and there is no clinical evidence to suggest cervical radiculopathy. There is no evidence in the upper extremities to indicate disuse. The veteran's spine problems do in fact impact his ability to function. He is limited in what he can lift in regards to his neck and the examiner would limit him to no more than fifteen pounds lifting based upon his degenerative changes in his cervical spine. The veteran related having excess fatigability but the examiner opined that this was more likely related to fibromyalgia and his sleep apnea problems rather than to his cervical spine issues. Dr. van den Hoven notes that there are no specific incoordination deficits as a direct result of his cervical spine and that any incoordination is more likely related to his vestibular dysfunction and syncopal episodes. He added that the veteran does have multiple other problems that do impact his functional capacity. Specifically, his shoulder problems, lumbar spine degenerative disc disease, right total knee replacement, and vestibular dysfunction. The March 1999 VA examination of the cervical spine reflects that the veteran was told by Dr. Thompson that his complaints were compatible with fibromyalgias, that he was started on Celebrex capsules twice a day and Ultram, that overall his pain has improved by some 30 percent, and that he is 50 percent of normal. He has no specific radiation of his pain; he has not noted any change in his cervical spine complaints. The veteran keeps his pain complaints in the range of mild to moderate. The pacing and medications help this problem. The March 1999 cervical spine films reflect no significant interval change. Objectively, the residuals of the neck injury with arthritic spur on the cervical spine are manifest by normal cervical lordosis, no scoliosis, no paracervical spasm, no pain to palpation of the soft tissue spinous processes, no fibrocytic nodules and/or point of maximum tenderness found in the occipital area, paracervical area, or upper trapezius. There is no pain to percussion of the head or any abnormality felt in the head. There is no pain on axial compression and/or traction. Range of motion of the cervical spine reflects: active rotation of 55 degrees, within functional limits; forward flexion of 60/65 degrees; and extension of 35/55 degrees. Spurling is negative. On neurosensory examination, cranial nerves II through XII are grossly intact. Sensation was intact to pinprick and touch throughout upper and lower extremities. The clinical diagnosis regarding the cervical spine reflects degenerative changes seen on x-ray compatible with multilevel osteoarthritis with limitation of range of motion discomfort. Repetitive activities were done and noted on the cervical spine without fatigue and/or subjective increase of pain. In the opinion of this examiner, the issues of DeLuca did not apply. There was no report of excessive fatigability, pain, incoordination, or weakness. The cervical spine x-rays reflect anterior spondylolisthesis of C5 in relation to C6; degenerative disk changes at C3 through C7; and uncovertebral joint disease, most prominent at C5-6 on the left. The examination report refers to the extensive 13-page compensation and pension examination dated in March 1998 to address the Board's remand questions. At the outset, the Board acknowledges the observations of the veteran and his spouse as regards his service-connected cervical spine disability characterized as residuals of a neck injury with arthritic spur on the cervical spine. However, the disability rating is a combination of the subjective and clinical findings based on examination. See 38 C.F.R. §§ 4.2, 4.6 (1999). In that respect, on a complete and thorough review of the medical evidence of record submitted since 1993, the Board finds that the current evidence of record supports an increased rating for those factors specifically documented as residuals of the neck injury in-service. The neck injury with arthritic spur on the cervical spine is manifest by osteoarthritis and mild to moderate limitation of motion with some pain on motion not exclusively due to the service-connected disability. The neck problems are predominantly disc and joint. The minimal to no paraspinal muscle atrophy is not related to specific nerve root entrapment and there is no evidence of disuse. There is no radiculopathy. The medical records reflect that the arthritic spur posed no additional disability and was essentially unchanged since 1996. Therefore, a 20 percent disability rating for moderate limitation of motion is warranted under DC 5290 and no more. See 38 C.F.R. § 4.71a. Muscle strength and joint testing most recently did not demonstrate weakness or spasm. There was no increased fatigability, incoordination, or weakness associated with repetitive activities to raise the consideration of a higher rating due to additional functional disability. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. § 4.40, 4.45. Furthermore, symptomatology associated with flare-ups was restricted to the impact of the nonservice-connected fibromyalgia. As the medical evidence of record is not clinically characteristic of severe limitation of motion of the cervical spine, or favorable ankylosis of the cervical spine, or severe recurring attacks of intervertebral disc syndrome with intermittent relief, a higher disability rating is not warranted. See 38 C.F.R. § 4.71a, DCs 5287, 5290, 5293. The Board determines that the veteran is most appropriately evaluated at the 20 percent rate under DC 5290. In the May 1998 supplemental statement of the case, the RO noted that consideration of 38 C.F.R. § 3.321 (1999) had been given, but the case was not considered so unusual as to warrant referral for a higher rating on an extraschedular basis. In reviewing this case, the Board also must consider whether additional benefits are warranted under any of the provisions of Parts 3 and 4. As to the disability picture presented in this case, the Board cannot conclude that the disability picture is so unusual or exceptional, with such related factors as frequent hospitalization or marked interference with employment exclusively attributable to the residuals of the neck injury with arthritic spur on the cervical spine, to prevent the use of the regular rating criteria. The Board acknowledges the observations of the veteran and his spouse, particularly those noted on the most recent examination that there had been no recent changes in the symptoms related to the neck disability. He is able to mow the lawn with a push mower. He does some tinkering in his barn with tools, hammer, and a saw. He likes to fix some things and pulls weeds. He is able to dress himself except for putting on surgical stockings. It is accepted that the manifestations of the cervical spine disability include stiffness in his neck with limitation of motion in some movements. However, these factors are not so exceptional as to preclude the use of the regular rating criteria. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case. In the absence of unusual or exceptional factors, the Board finds that the criteria for submission for the assignment of an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 20 percent evaluation for residuals of a neck injury with arthritic spur on the cervical spine is granted. Deborah W. Singleton Member, Board of Veterans' Appeals