Citation Nr: 0005471 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-19 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased evaluation for degenerative joint disease (DJD) of the cervical spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from May 1977 to April 1991, with additional active service of about seven years and three months, which is unverified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (MROC) in Wichita, Kansas. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's cervical spine disability is manifested by subjective complaints of constant neck pain and stiffness, as well as a pulling sensation with forward neck motion and grating and popping with side-to-side motion, as well as objective evidence showing cervical spine motion that is normal or nearly normal, with the exception of limited lateral flexion bilaterally, with pain confirmed during left motion only. There is no physical evidence of weakness, swelling, deformity, muscle spasm, atrophy, or other abnormality. X-rays of the cervical spine show some vertebral spurring and narrowed disc spaces. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for DJD of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5290 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The VAMROC originally established service connection for DJD of the cervical spine in a December 1991 rating decision. At that time, it assigned a noncompensable (0 percent) rating. In April 1998, the veteran submitted a claim for an increased rating. In connection with that claim, the veteran underwent a VA orthopedic examination in June 1998. He complained of occasional stiffness. He had rare periods of flare-ups. Medications included Naprosyn and capsaicin cream. On examination, there was no stiffness. Range of motion testing showed forward flexion to 30 degrees, backward extension to 30 degrees, lateral flexion to 40 degrees bilaterally, and rotation to 50 degrees bilaterally. There was a pulling sensation to the cervical paraspinal muscles at the extremes of range of motion. There was no pain on motion. There was no postural abnormality, fixed deformity, or neurological abnormality. Musculature of the back was good. The diagnosis was DJD of the cervical spine. X-rays of the cervical spine showed straightening of the spine, vertebral marginal spurring, and narrowing of the C4-7 disc spaces with foraminal encroachments at the C6-7 level bilaterally. In a June 1998 rating decision, the RO continued the noncompensable rating. The veteran timely appealed that decision. In his July 1998 notice of disagreement, the veteran indicated that he did have restriction of activities due to his neck disability. In addition, when he moved his head a certain direction, it was very painful. VA outpatient notes dated in November 1998 indicated that the veteran complained of paresthesias in the hands. He was getting physical therapy for his neck. Examination revealed some limitation of neck motion. There was normal strength in the hands and normal sensation. The diagnosis was cervical DJD and occasional paresthesia in the hands. The veteran testified at a personal hearing in December 1998. He indicated that the earlier VA examination consisted only of the X-rays; he was not examined in any way. The veteran was unable to ride his bicycle because he could not hold his head up. The two-hour drive to the hearing caused stiffness in his neck. He could move his head back, but forward motion caused a pulling sensation. Side-to-side motion caused popping and a grating sensation. The veteran had neck pain every day, which he rated at a seven out of ten. He had level-ten pain about twice a week. The veteran worked at the post office. He had problems with the upper back going out due to lifting required as a mail handler. He now worked in maintenance. In October, he fell while working, which caused an immediate headache and worsened neck stiffness. He attended physical therapy at St. Francis Hospital. The veteran had taken muscle relaxers and pain medication. He took the pain medication about three times a week; otherwise, he just dealt with the pain. The veteran continued to work at the post office. He was on limited duty on two occasions in November 1998 due to neck problems. He was currently back on full duty. His activities included some lifting and moving furniture, sweeping, and mopping. He had not been given any special accommodations due to his neck problem. The veteran's neck symptoms were primarily daily pain, a pulling sensation, and neck stiffness. The VAMROC received a February 1999 statement from the veteran's supervisor. He indicated that the veteran's job consisted of sweeping, mopping, and dumping trash. He was also required to push, pull, and lift up to 70 pounds. Most heavy work was moving furniture or dumping trash. However, the veteran had recently had a series of problems with his back that kept him from performing his duties as needed. In March 1999, the VAMROC increased the disability rating for DJD of the cervical spine to 10 percent effective from the date of the April 1998 claim. The veteran continued to pursue an increased evaluation. Records from St. Francis Hospital showed treatment for non- cervical disorders as early as March 1994. In October 1998, the veteran presented after falling at work. Complaints included a left elbow abrasion, shoulder discomfort, and neck discomfort. On examination, the neck was supple and non- tender. There was full range of motion without difficulty. There was some tenderness over the trapezius area in the upper back. The diagnoses included cervical strain. The veteran was released to return to work and given a prescription for Flexeril. The veteran returned in November 1998 for a follow up. He related that his neck had been very stiff since the fall. Examination of the neck was negative for midline tenderness in the cervical spine or elsewhere along the back. There was cervical paraspinal muscle tightness. Neck movements were normal but slightly stiff. The balance of the examination was normal. The treating physician indicated that X-rays of the cervical spine were unremarkable. The X-ray report indicated findings of reverse cervical lordosis, some narrowing of the disc spaces of C3-7, which was most marked at C4-5 and C6-7, and slight foraminal encroachment at C4-5 on the right. The physician recommended physical therapy. The veteran returned at the end of November 1998, indicating that he had completed physical therapy. He was much better though there was still some stiffness. Examination of the neck was normal except for minor stiffness. Additional records from St. Francis Hospital showed that the veteran was treated for localized thoracic spine strain in December 1998 that was apparently related to the October 1998 fall. The veteran related his cervical and thoracic spine problems had improved. Specifically, the pain was better and did not limit his normal activities of daily living. Physical therapy notes dated in January 1999 showed motion testing results of 28 degrees backward extension, forward flexion within full limits, 40 degrees rotation bilaterally, 17 degrees right lateral flexion, and 15 degrees left lateral flexion with pain during movement. In January 1999, at the emergency room, the veteran reported that he continued to have intermittent cervical and thoracic pain and tightness, even without activity. Examination revealed no midline tenderness of the cervical or thoracic spine. Neck movements were normal. There was a myofascial soreness to touch in the paraspinal region in the mid thoracic and cervical region. The assessment was neck and thoracic myofascial pain. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The DJD of the cervical spine is currently evaluated as 10 percent disabling under Diagnostic Code (Code) 5010 and Code 5290. 38 C.F.R. § 4.71a. Initially, the Board notes that there are other diagnostic codes that are potentially applicable to the evaluation of cervical spine disability. However, none of these diagnostic codes is factually applicable in this case. See 38 C.F.R. § 4.71a, Code 5285 (residuals of a fractured vertebra), Code 5287 (ankylosis of the cervical spine), and Code 5293 (intervertebral disc syndrome). Accordingly, the Board finds that the veteran's DJD of the cervical spine is most appropriately rated under Codes 5010 and 5290. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Under Code 5010, arthritis due to trauma, disability is evaluated as degenerative arthritis pursuant to Code 5003. Degenerative arthritis is rated according to limitation of motion of the affected part. Under Code 5290, a 10 percent rating is assigned for slight limitation of motion of the cervical spine. Moderate and severe limitation of motion warrants a 20 percent or a 30 percent rating, respectively. When limitation of motion is noncompensable, Code 5003 provides that a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is in order with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is appropriate with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the cervical vertebrae are considered a group of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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 any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. A precedent opinion by VA's General Counsel held that the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Code 5003 or Code 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. VAOPGCPREC 9-98. See 38 U.S.C.A. § 7104(c) (the Board is bound by precedent opinions by the General Counsel). Considering the entire disability picture, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for DJD of the cervical spine. The June 1998 VA examination report showed essentially normal neck motion without pain on motion. January 1999 physical therapy notes from St. Francis Hospital show cervical motion that was normal in forward flexion and near normal in rotation and backward extension. There was substantial limitation of lateral flexion bilaterally, with pain confirmed during left motion only. The Board finds that the disability picture presented more nearly approximates the criteria for a 10 percent rating (slight limitation of motion) than the criteria for a 20 percent rating (moderate limitation of motion), under Code 5290. 38 C.F.R. § 4.7. The Board acknowledges the veteran's subjective complaints of constant neck pain and stiffness, as well as a pulling sensation with forward neck motion and grating and popping with side-to-side motion. However, there is little objective evidence of record, VA or private, of any significant functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnston, 10 Vet. App. at 85. For example, during the June 1998 VA examination, the veteran did report a pulling in the cervical paraspinal muscles at the extremes of motion. However, the balance of the physical examination was normal. Records from St. Francis Hospital showed cervical paraspinal muscle tightness but normal and full neck motion without evidence of other abnormality. There is no evidence of weakness, swelling, muscle spasm, deformity, or atrophy. In addition, the Board notes that treatment records from St. Francis Hospital show that the veteran was seen at that facility from February 1995 through January 1999 for strain of the thoracic spine. Service connection is not in effect for disability of the thoracic segment of the spine, and so thoracic spine symptomatology may not be considered in assigning a disability evaluation for the service connected disorder of the cervical spine. Finally, the Board finds no reason for referral to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). That is, there is no evidence of exceptional or unusual circumstances to suggest that the veteran is not adequately compensated by the regular rating schedule. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. December 29, 1999); VAOPGCPREC 36-97. In summary, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent for DJD of the cervical spine. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5290. ORDER An increased evaluation of degenerative joint disease of the cervical spine is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals