Citation Nr: 0007591 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 96-11 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to secondary service connection for bilateral shoulder disability. 2. Entitlement to an increased rating for cervical spine disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from August 1981 to August 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions, the earliest of which was entered in August 1995, of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A hearing was held before a hearing officer at the RO in October 1995, and the hearing officer's decision was entered in December 1995. Another hearing was held before a hearing officer at the RO in July 1997, and the hearing officer's decision was entered in September 1997. The appeal was docketed at the Board in 1996. FINDINGS OF FACT 1. The claim for secondary service connection for bilateral shoulder disability is not plausible. 2. Current manifestations of the veteran's service-connected cervical spine disability include complaint of motion-related pain; overall motion involving the cervical spine is not more than moderately restricted. CONCLUSIONS OF LAW 1. The claim for secondary service connection for bilateral shoulder disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 20 percent for cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Code 5290 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). 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 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her 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; 38 C.F.R. §§ 4.1, 4.10 (1999). Service connection is in effect for residual, cervical spine injury, with mild degenerative changes at multiple levels and focal disc bulging centrally at C5-6, for which the RO has assigned a 20 percent rating under the provisions of Diagnostic Code 5290 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1999), and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected cervical spine disability. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to such disability. I. Bilateral Shoulder Disability The threshold question to be answered concerning the veteran's claim for secondary service connection for bilateral shoulder disability is whether she has presented evidence of a well grounded claim, that is, one which is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a claimant does not submit evidence of a well grounded claim, VA is under no duty to assist him or her in developing facts pertinent to such claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons set forth below, the Board finds that the veteran has not met her burden of submitting evidence to support a belief by a reasonable individual that her claim for secondary service connection for bilateral shoulder disability is well grounded. Secondary service connection can be granted for disability which was either caused or chronically worsened (though only to the extent of such worsening) by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). The veteran contends, in essence, that she presently has chronic disability involving each shoulder which is, in each instance, directly attributable to impairment associable with her service-connected cervical spine disability. In this regard, however, when she was examined by VA in June 1995, the veteran was found to be free of any pathology involving either shoulder, the presence of which is prerequisite to any favorable claim for service connection generally. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be sure, when she was seen by VA several days later, the veteran was assessed as having (though "not" secondary to her service-connected cervical spine disability) "[p]ain" involving each shoulder. However, the United States Court of Appeals for Veterans Claims has recently held that pain alone does not comprise a disability for which service connection may be granted. See Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). In view of the foregoing, then, the Board is constrained to conclude that a plausible claim for secondary service connection for bilateral shoulder disability is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). In addition, although the Board has considered and disposed of the veteran's foregoing claim for secondary service connection for bilateral shoulder disability on a ground different from that of the RO, the veteran has not been prejudiced by the Board's decision. This is because, in assuming that such claim was well grounded, the RO accorded the veteran greater consideration than this claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether this claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992). Finally, as pertinent to the veteran's claim for secondary service connection for bilateral shoulder disability, the Board is of the opinion that its discussion above bearing on such issue is sufficient to inform the veteran of the elements necessary to complete her application for a claim for secondary service connection relative to such corresponding disability. See Robinette v. Brown, 8 Vet. App. 69 (1995). II. Increased Rating, Cervical Spine Disability Pursuant to Diagnostic Code 5290, a 20 percent rating is warranted for "moderate" overall limitation in cervical motion; if such limitation is "severe", a 40 percent rating is warranted. The veteran asserts that she experiences pain on motion involving her cervical spine. In this regard, when she was examined by VA in June 1995, the veteran exhibited an ability to flex and extend her cervical spine to 15 and 20 degrees, respectively; she demonstrated lateral flexion to 15 and 30 degrees to the left and right, respectively. She complained of experiencing pain in all motion excursions, and indicated that motion in each excursion was limited by pain. When she was examined in conjunction with physical therapy rendered her under non-VA auspices in November 1995, the veteran was noted to have overall cervical motion which was only "10% of normal". When she was examined by VA in April 1996, the veteran exhibited an ability to flex and extend her cervical spine to 45 and 60 degrees, respectively; lateral flexion was exhibited to 70 and 80 degrees to the left and right, respectively. Most recently, when she was examined by VA in August 1997, the veteran complained of experiencing "neck stiffness on a daily basis". On physical examination, she exhibited an ability to flex and extend her cervical spine to 25 and 40 degrees, respectively; lateral flexion was exhibited to 25 and 30 degrees to the left and right, respectively. In considering the veteran's claim for an increased rating for her service-connected cervical spine disability, the Board has no reason to question the veracity of her assertions relative to experiencing motion-related pain in apparently all cervical excursions. Notwithstanding such consideration, however, the Board is of the opinion, owing to the reasoning advanced hereinbelow, that an increased disability rating for her service-connected cervical spine disability is not in order. In reaching such conclusion, the Board is constrained to point out that overall cervical motion was apparently very restricted (i.e., '10% of normal') when the veteran presented for physical therapy under non-VA auspices in November 1995. However, on the occasion of her recent examination by VA in August 1997, optimum cervical lateral flexion (to 30 degrees, on the right, versus to 80 degrees in April 1996) as well as extension (to 40 degrees, versus to 60 degrees in April 1996) represented, in each instance, motion in each respective excursion that was only slightly to moderately restricted. Cervical flexion (to 25 degrees) was, to be sure, clearly more restricted. Nevertheless, the Board cannot overlook that when exhibiting cervical flexion on the August 1997 VA examination, the veteran indicated that she intentionally declined to attempt to achieve greater cervical flexion (i.e., flexion in excess of 25 degrees) owing to asserted advisement "from her physical medicine and rehabilitation physician". In any event, on the occasion of her examination by VA in April 1996, sharply greater cervical flexion, to 45 degrees, was achieved. Given such demonstrated flexion on the April 1996 examination, and inasmuch as, on the most recent VA examination, cervical motion in the extension and lateral flexion (at least to the right) excursions is (as was observed above) only slightly to moderately restricted, the Board is well persuaded that her overall cervical motion is no more than moderately restricted, which extent of diminution from full cervical motion is representative of disability commensurate with her present 20 percent rating under Diagnostic Code 5290. Further, X-ray examination of the veteran's cervical spine by VA in August 1997 was interpreted as being "normal", precluding any notion of awarding the veteran a 40 percent rating (owing to intervertebral disc syndrome if shown) in accordance with the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). Therefore, the Board is of the view that the preponderance of the evidence is against an increased rating for her service- connected cervical spine disability. In reaching the foregoing determination, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, as pertinent to factors, traceable to service-connected disability involving the cervical spine, including general functional loss, weakened movement and excess fatigability. The Board has also been attentive for indication of loss of functional ability, within the purview of 38 C.F.R. § 4.40, specifically traceable to pain on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board finds it noteworthy that, on the occasion of her examination by VA in August 1997, while the veteran was noted to experience pain in each attempted cervical excursion (i.e., flexion, extension, lateral flexion and rotation), the examiner specifically noted that the veteran was able to execute motion in each excursion "without weakness or fatigue". In addition, since the veteran indicated at her July 1997 hearing that she experienced pain in her neck "whether I move my neck or not", the Board would posit that at least some of the neck pain of which the veteran complained on the August 1997 examination may in fact be associable with her nonservice-related myofascial pain syndrome (as opposed to cervical spine disability per se), such syndrome having also been assessed on the August 1997 VA examination. The foregoing considerations, in the Board's view, militate persuasively against the existence of sufficient disablement, relative to the veteran's service-connected cervical spine disability, as to warrant the assignment of a higher disability rating predicated on either 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. The Board has also given consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be assigned, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. However, the record does not show that the actual manifestations of service-connected disablement, relative to the cervical spine, more closely approximate those required for a 40 percent rating than they do the disability rating currently assigned. Accordingly, the Board is unable to identify a reasonable basis for a grant of this aspect of the benefit sought on appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Code 5290. ORDER Evidence of a well grounded claim not having been submitted, the appeal for secondary service connection for bilateral shoulder disability is denied. An increased rating for cervical spine disability is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals