Citation Nr: 9902849	
Decision Date: 01/29/99    Archive Date: 02/04/99

DOCKET NO.  96-23 005	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical & Regional Office 
Center in Cheyenne, Wyoming


THE ISSUE

Entitlement to an increased rating for degenerative joint 
disease and degenerative disc disease of the cervical spine, 
currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

John J. Crowley, Counsel


INTRODUCTION

The veteran served on active duty from January 1942 to 
January 1947, and was a Prisoner of War (POW) of the German 
government from April 1944 to April 1945.

This matter is currently before the Board of Veterans 
Appeals (Board) on appeal from rating decisions of the 
Department of Veterans Affairs (VA) Medical and Regional 
Office Center (M&ROC).  In February 1998, the Board remanded 
this case to the M&ROC for additional development.  At that 
time, additional issues raised by the veteran were addressed 
by the Board, including the issues of entitlement to service 
connection for the residuals of dysentery, a peptic ulcer 
disease, the residuals of frostbite, vertigo, plantar warts 
of the left foot, and an acquired psychiatric disorder.  The 
Boards determinations regarding these issues appear to have 
been appealed to the United States Court of Veterans Appeals 
(Court).  In any event, these issues are not before the Board 
at this time.  

The undersigned has considered whether a claim of entitlement 
to an increased evaluation for the veterans service-
connected lumbar spine disability is before the Board at this 
time.  In a January 1996 rating decision, service connection 
was awarded for both degenerative joint disease of the 
cervical spine and degenerative joint disease of the 
lumbosacral spine.  Each was awarded a 10 percent disability 
evaluation.  In a written statement accepted by the M&ROC as 
a notice of disagreement to the January 1996 rating decision, 
the veteran made reference solely to the cervical spine 
disability.  Accordingly, the M&ROC issued a statement of the 
case in April 1996 that addressed the issue of entitlement to 
an increased evaluation for degenerative joint and disc 
disease of the cervical spine (along with issues denied by 
the Board in February 1998).  

In the May 1996 substantive appeal, the veteran made 
reference to post-traumatic osteoarthritis and intervertebral 
disc syndrome.  At this time, the veteran did not 
specifically note disagreement with the evaluation of his 
service-connected lumbosacral spine disorder.  Nevertheless, 
in light of additional medical records obtained by VA  since 
the February 1996 rating determination, the M&ROC, in a July 
1997 rating decision, awarded a 20 percent evaluation for 
lumbar spine post-traumatic degenerative joint and disc 
disease.  The M&ROC continued its determination that the 
veterans cervical spine disability was no more than 
10 percent disabling.  

In February 1998, the Board determined that the veteran had 
not filed an appeal regarding the evaluation of his service-
connected back disability.  As such, it was determined that 
this issue was not for consideration by the Board.  Neither 
the veteran nor his representative have disputed this 
determination.  In written argument prepared by the veterans 
representative in September and November 1998, no reference 
was made to the service-connected back disability.  

In AB v. Brown, 6 Vet. App. 35 (1993), cited by the veterans 
representative in November 1998, the Court held that on a 
claim for an original or increased rating, the claimant will 
generally be presumed to be seeking the maximum benefit 
allowed by law and regulation.  In addition, the Board must 
review all issues that are reasonably raised from a liberal 
reading of the veterans substantive appeal.  EF v. 
Derwinski, 1 Vet. App. 324, 326 (1991).  

Further, as has also been noted by Court, the statute, 
38 U.S.C.A. §  7105(West 1991), does not impose technical 
pleading requirements.  Tomlin v. Brown, 5 Vet. App. 355  
(1993).  Nevertheless, based on a second review of the 
procedural history in this case, the Board must find that the 
veteran has filed no notice of disagreement with either the 
January 1996 rating determination, wherein the M&ROC awarded 
the veteran service connection for the lumbar spine 
disability, or the July 1997 rating decision, wherein the 
M&ROC awarded the veteran an increased evaluation for his 
lumbar spine disability.  



While this veteran will be generally presumed to be seeking 
the maximum benefit allowed by law and regulations, the Board 
may not entertain an application for review on appeal unless 
it conforms to the law.  38 U.S.C.A. § 7108 (West 1991 & 
Supp. 1998).  Under the guidance supplied by the Court in AB 
and the United States Court of Appeals for the Federal 
Circuit in Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), 
no other outstanding question of law or fact concerning the 
provision of benefits under the law administered by VA 
remains unresolved with regard to the proper evaluation of 
the veterans lumbar spine disability.  

While the veteran made reference to his lumbar spine 
disability in a January 1997 statement, the Board must find 
that this statement, and other statements submitted by the 
veteran, cannot be considered a timely notice of disagreement 
to the January 1996 rating decision or, clearly, the July 
1997 rating decision.  See § 20.201 (1998).  The January 1997 
statement from the veteran appears to have been accepted by 
the M&ROC as a claim for additional compensation for the 
service-connected back disability.  In light of this request, 
the M&ROC developed this issue on a de novo basis and awarded 
the veteran an increase in this disability evaluation in July 
1997.  The M&ROC provided the veteran a copy of the July 1997 
rating determination that month.  The veteran did not appeal 
this determination.  Accordingly, this issue is not before 
the Board at this time.

If the veteran wishes to seek an increase in the evaluation 
of his service-connected back disability, he must do so first 
with the M&ROC.  The failure of either the veteran or his 
representative to dispute this issue since the Board remanded 
this case in February 1998 clearly supports this 
determination.  The Board finds that based on the veterans 
statements, no outstanding question of law or fact concerning 
the provision of benefits under the law administered by VA 
remains unresolved with regard to the evaluation of the 
veterans service-connected back disability.  Absent such 
questions, there is no matter over which the Board may 
exercise its jurisdiction.  38 U.S.C.A. §§ 510(a), 7104 (West 
1991).  Consequently, this claim is not before the Board at 
this time.  


FINDINGS OF FACT

1.  VA has fulfilled its duty to assist the veteran in the 
development of all facts pertinent to this claim.

2.  All available, relevant evidence necessary for an 
equitable disposition of the veterans appeal on the issue of 
entitlement to an increased evaluation for degenerative joint 
disease and degenerative disc disease of the cervical spine 
has been obtained by the M&ROC.  

3.  The residuals of the veterans service-connected neck 
disability include degenerative disc disease of the cervical 
spine with good range of motion and a full arc with some 
soreness with the extremes of motion.  

4.  Moderate limitation of motion of the cervical spine or 
intervertebral disc syndrome with recurring attacks is not 
found.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for 
cervical spine post-traumatic degenerative joint and disc 
disease have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 
1991); 38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.10, 4.40, 4.71a, 
Diagnostic Codes 5003, 5010, 5287, 5290, and 5293 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran was discharged from active service in January 
1947.  He filed a claim for VA compensation in December 1946.  
At that time, the veteran made no reference to a cervical 
spine disability.  At a VA examination in May 1947, no 
reference is made to a back or neck disability.

In September 1995, the veteran filed an additional claim for 
VA compensation.  He noted treatment for a herniated disc at 
the 7th cervical vertebrae in 1987.  At that time, the 
veteran does not appear to associate this disability with his 
active service.  In an October 1995 social and industrial 
survey, the veteran stated that his 7th neck vertebral body 
was herniated possibly due to free-falling and then opening 
his parachute during his active service in World War II.  No 
reference to neck pain or limitation of motion caused by the 
neck disability was indicated at this time.  At an October 
1995 VA examination, the evaluator noted a history of neck 
pain and left arm numbness.  The veteran was diagnosed with 
degenerative joint disease of the cervical and lumbosacral 
spine with degenerative disc disease of the cervical spine in 
the area of C5-C6 and C6-7.  Occasional numbness in the left 
arm was indicated.  

In January 1996, the M&ROC awarded the veteran service 
connection for degenerative joint and disc disease of the 
cervical spine, post-traumatic.  In a March 1996 notice of 
disagreement, the veteran requested that VA review its 
findings of only 10 percent on the cervical spine problem.  
The veteran noted the use of a head halter traction kit to 
treat this condition.  In May 1996, the veteran noted 
intervertebral disc syndrome with recurring attacks and only 
intermittent relief.  

Additional medical records were obtained by the M&ROC.  These 
treatment records note only sporadic treatment of the 
veterans cervical spine disability.  At a hearing held 
before a hearing officer at the M&ROC in May 1996, he 
indicated the use of traction to treat his neck disability.  
He associated arm numbness to his service-connected neck 
disability.  He also noted that he could turn his head 
reasonably well.  

Additional attempts by the M&ROC to obtain medical records 
pertinent to the veterans claim were performed.  In February 
1997, the M&ROC wrote to the veteran and indicated that a 
health care provider who the veteran had identified in an 
earlier statement had not answered the M&ROCs request for 
medical treatment records.  It was requested that he provide 
this medical evidence.  In April 1997, the M&ROC received a 
statement from William W. Hollifield, M.D.  Dr. Hollifield 
made reference solely to the veterans low back disability.  

In August 1997, the veteran reported that he had no 
additional supportive evidence to furnish at this time.  
Accordingly, the M&ROC sent the case to the Board for 
additional development.  

In February 1998, the Board remanded this case to the M&ROC 
for additional development.  At the request of the Board, the 
veteran underwent an evaluation of his cervical spine 
disability performed by an independent medical expert in June 
1998.  The medical expert reported that he had reviewed the 
veterans extensive medical records as well as statements 
provided by the veteran.  At this time, the veteran noted few 
difficulties associated with his neck disorder.  Physical 
examination of the cervical spine revealed that range of 
motion was essentially full.  The examiner reported that the 
veteran could obtain full motion, but did have some pain at 
the extremes of motion, especially with rotation and with 
extension.  No obvious paraspinal muscular spasm or atrophy 
was found.  Normal sensation throughout the upper extremities 
was found.  

Cervical spine X-rays taken that month revealed degenerative 
joint disease at C5-C6 with narrowing of the disc space and 
mild bony proliferation.  The radiologist noted that this was 
not likely to be a significant bony proliferation and did not 
appear to cause canal crowding.  The independent medical 
examiner noted that cervical spine X-ray studies had revealed 
moderate to severe degenerative disc space narrowing at C5-6 
with minimal disc space gthompson@example.org.  

The veteran was assessed with degenerative disc disease of 
cervical spine.  Regarding specific questions raised by the 
Board within its February 1998 remand, the examiner 
responded that the veteran appeared to have good range of 
motion with full arc and some soreness with the extremes 
of motion.  Complaints of pain in the left upper extremity, 
in the opinion of the examiner, could not be fully related to 
his cervical spine in that no obvious neurological 
impingement was found.  The veterans subjective complaints 
were found to be substantiated somewhat by X-ray studies.  
His physical examination, however, was reported to be not as 
severe as his X-ray findings.  No evidence was found on 
previous studies to explain why the veteran would be 
experiencing left upper extremity pain from his neck.  

As to the severity of the cervical spine disability, the 
examiner stated that this condition did not appear to weaken 
his movement or cause excess fatigability or incoordination.  
As to whether pain was visibly manifested on movement of the 
cervical spine, the examiner noted that it is at the very 
extreme of motion.  No muscle atrophy or changes in the 
skin indicating disuse due to degenerative disc disease was 
found.  The only real objective findings were of pain at the 
extremes of motion.  The use of an anti-inflammatory agent 
for back and neck pain was indicated.  The examiner also 
noted a post service lumbar fracture which appeared to 
compound the veterans back difficulties.  


Analysis

In light of the veterans contentions and the Courts 
determination in Proscelle v. Derwinski, 2 Vet. App. 629 
(1992), the Board finds the veterans claim is well grounded 
within the meaning of 38 U.S.C.A. § 5107(a).  The issue of 
whether VA has met its duty to assist the veteran in the 
development of this claim, mandated by 38 U.S.C.A. § 5107(a), 
will be discussed below.

It is essential in the evaluation of a disability that it be 
reviewed in the relation to its history.  38 C.F.R. § 4.1 
(1998).  Notably, however, where entitlement to compensation 
has been established and an increase in the disability 
evaluation is at issue, it is the present level of disability 
that is of primary concern.  Francisco v. Brown, 7 Vet. App. 
55, 58 (1994).  Accordingly, while the Board will review the 
veterans service-connected disability in relationship to its 
history, the Board will concentrate its efforts to determine 
the nature and extent of the current disability to determine 
the proper evaluation.  

In this case, the veteran has noted treatment for his 
service-connected neck disability in the 1970s and early 
1980s.  While these records have not been associated with 
the veterans claims folder, the Board finds that it may 
proceed with the adjudication of this claim at this time.  
The M&ROC has undergone extensive attempts to obtain all 
medical records cited by the veteran.  

The veteran himself has indicated that no additional 
pertinent medical records are available.  Further, as noted 
by the Court in Francisco, it is the present level of 
disability that is of primary concern.  Since the veteran 
filed this claim in September 1995, he has undergone numerous 
VA examinations which fully evaluate the current neck 
disability.  Accordingly, medical evidence from the 1970s, 
even if located, would be of limited probative value.  The 
Board has accepted the veterans statements regarding 
treatment of a neck disability in 1974.  This is not at 
issue.  Further, in light of the fact that the veteran is 
78 years of age, an additional remand of this case cannot be 
justified.  

VA has a duty to assist the veteran in developing facts 
pertinent to a well-grounded claim.  38 U.S.C.A. § 5107(a) 
(West 1991).  Based on the evidence retrieved by the M&ROC, 
the Board is satisfied that VA has fulfilled its duty to 
assist the veteran in developing all facts pertinent to this 
claim.  The veteran has undergone numerous complete and 
thorough evaluations and the M&ROC has made every effort to 
locate pertinent documents specified by the veteran.  As 
noted above, the veteran himself has indicated that all 
information pertinent to this claim has been obtained.  

The duty to assist is not always a one-way street; nor is it 
a blind alley.  Olson v. Principi, 3 Vet. App. 480, 483 
(1992).  In light of the fact that this case has been 
remanded, the Board finds no rational basis to remand this 
case again.  As noted in Smith v. Derwinski, 2 Vet. App. 429, 
432 (1992), the duty to assist is not unlimited in scope and 
requires of VA only those actions which are reasonable under 
the circumstances involved.  Consequently, in light of the 
efforts of both the M&ROC and the VAMC, the Board finds that 
VA has fulfilled the duty to assist the veteran pursuant to 
the mandate of 38 U.S.C.A. § 5107(a) and an additional remand 
is unwarranted.  Accordingly, the Board will proceed with the 
adjudication of the veterans claim at this time.

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average industrial 
impairment.  38 U.S.C.A. §  1155.  Separate diagnostic codes 
identify the various disabilities.  

The veterans service-connected degenerative joint and disc 
disease of the cervical spine, post-traumatic, has been 
evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 
5293 (1998).  Under Diagnostic Code 5010, arthritis, due to 
trauma, substantiated by X-ray findings, is to be rated as 
degenerative arthritis.  Under 38 C.F.R. § 4.71a, Diagnostic 
Code 5003, degenerative arthritis, established by X-ray 
findings, will be related on the basis of limitation of 
motion under the appropriate diagnostic codes for the 
specific joint or joints involved.  When, however, limitation 
of motion of the specific joint or joints involved is 
noncompensable under the appropriate diagnostic codes, a 
rating of 10 percent if for application for each such major 
joint or group of minor joints affected by limitation of 
motion, to be combined, not added, under Diagnostic 
Code 5003.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5290, severe 
limitation of motion of the cervical spine warrants a 
30 percent evaluation, moderate limitation of motion of the 
cervical spine warrants a 20 percent evaluation, and a slight 
limitation of motion of the cervical spine warrants a 
10 percent evaluation.  The M&ROC has also evaluated the 
veterans disability under 38 C.F.R. § 4.71a, Diagnostic 
Code 5293 (intervertebral disc syndrome).  

Under this code, a 60 percent evaluation is warranted with 
pronounced intervertebral disc syndrome with persistent 
symptoms compatible with sciatic neuropathy with 
characteristic pain and demonstrable muscle spasms, absent 
ankle jerk, or other neurological findings appropriate to the 
site of the diseased disc, with little intermittent relief.  
Severe intervertebral disc syndrome, with recurring attacks 
and intermittent relief, warrants a 40 percent evaluation.  
Moderate intervertebral disc syndrome with recurring attacks 
warrants a 20 percent evaluation and mild intervertebral disc 
syndrome warrants a 10 percent disability evaluation.  

With any form of arthritis, painful motion is an important 
factor of disability, the facial expression, wincing, etc., 
on pressure or manipulation, should be carefully noted and 
definitely related to affected joints.  Muscle spasm will 
greatly assist the identification.  

The intent of the schedule is to recognize painful motion 
with joint or periarticular pathology as productive of 
disability.  It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  38 C.F.R. § 4.59. 

Based on the medical evidence, the current residuals of the 
veterans service-connected neck disability include 
degenerative disc disease of the cervical spine with good 
range of motion and a full arc with some soreness with the 
extremes of motion.  Based on the medical evaluations cited 
above, the Board finds no evidence to indicate moderate 
intervertebral disc syndrome with recurring attacks.  The 
veterans own statements do not support a finding that he 
suffers from recurrent intervertebral disc syndrome 
associated with his service-connected neck disability.  

While the veteran has noted severe recurring attacks with 
only intermittent relief, the medical evidence of record does 
not support this contention.  The VA evaluations have found 
no evidence of a neurological disability associated with the 
veterans neck disability.  The veterans objective 
complaints, contained within the VA evaluations of June 1998 
and October 1995, and a review of all private medical records 
submitted by the veteran do not support the contentions that 
he suffers from moderate recurring intervertebral disc 
syndrome.  The vast majority of the veterans complaints 
center on his low back disability.  As noted above, this 
issue is not before the Board at this time. 

The veterans own testimony indicates mild symptoms 
associated with the neck disability.  At that time, he has 
testified that he can turn his neck reasonably well and, 
significantly, failed to note moderate recurring attacks of 
intervertebral disc syndrome.  Accordingly, an increased 
evaluation under Diagnostic Code 5293 is not warranted.  

The medical evidence of record does not support a finding of 
moderate limitation of motion in the cervical spine caused by 
the service-connected neck disability.  As noted above, the 
evidence of record indicates near full range of motion.  At 
best, a slight limitation of motion is indicated.  

The independent medical expert who evaluated the neck 
disability in June 1998 found that the neck disability does 
not appear to weaken his movement or cause excess 
fatigability or incoordination.  In making this 
determination, the Board has considered carefully the Courts 
determination in DeLuca v. Brown, 8 Vet. App. 202, 205-6 
(1995).  In DeLuca, the Court ordered an examination where 
the examiner was asked to determine whether the veterans 
left shoulder exhibits weakened movement, excessive 
fatigability, or incoordination.  Id. at 207.  

In this case, the Board finds that the VA examination of June 
1998 meets the requirement of the Courts determination in 
DeLuca.  Within this examination, the independent expert 
notes the veterans pain and concludes that the veteran has 
good range of motion with full arc and some soreness on 
extreme motions.  No weakened movement or excessive 
fatigability or incoordination was found.  This medical 
opinion supports a conclusion that the veteran suffers from a 
slight limitation of motion of the cervical spine or mild 
intervertebral disc syndrome, warranting a 10 percent 
evaluation in either case.  There is little current evidence 
within the veterans recent medical records of a neck 
disability or difficulties, and no current showing of any 
ongoing treatment for neck pain.  On the basis of the 
objective medical evidence, his symptoms are not of a 
sufficient severity to meet the schedular criteria for an 
increased evaluation.  

The Board has considered whether the veteran should be 
allowed a separate evaluation under Diagnostic Code 5003.  
However, as stated within Diagnostic Code 5003, degenerative 
arthritis established by X-ray findings will be rated on the 
basis of limitation of motion of the appropriate diagnostic 
code for the specific joint or joints involved.  

In this case, the specific joint involved is veterans neck.  
Accordingly, this condition should be evaluated under 
Diagnostic Code 5290 and has been awarded a compensable 
evaluation under this section.  Thus, a separate evaluation 
under Diagnostic Code 5003 is not warranted.  See VAOPGCPREC 
23-97 (O.G.C. Prec. 23-97).  See also 38 C.F.R. § 4.14 
(1998).  





There is no competent evidence which the Board has found to 
be credible and of any significant probative weight at this 
time which would support a finding that the current service-
connected cervical spine disability has caused moderate 
limitation of motion, ankylosis, or moderate recurring 
attacks of intervertebral disc syndrome which would warrant 
the next higher evaluation under 38 C.F.R. § 4.71a, 
Diagnostic Codes 5287, 5290, or 5293 (1998).  While it is 
clear that the veteran had some residual disability 
associated with his service-connected neck disability, the 
overwhelming medical evidence supports the conclusion that 
the neck disability is, at best, mild, causing only a slight 
limitation of motion.  Accordingly, an increased evaluation 
is not warranted.

The Board has considered whether the issue of extraschedular 
entitlement under 38 C.F.R. § 3.321(b)(1) (1998) is raised by 
the record.  38 C.F.R. § 3.321(b)(1) applies when the rating 
schedule is inadequate to compensate for the average 
impairment of earning capacity for a particular disability.  
However, based on the veterans statements and the medical 
evidence cited above, the Board finds that the record does 
not raise the issue of entitlement under 38 C.F.R. § 
3.321(b)(1).  

In light of the recent evaluations of the veterans neck 
disability, which the Board finds to be highly probative, 
there is no evidence which the Board may consider as credible 
and of significant probative weight to indicate that the 
service related disability impairs earning capacity by 
requiring frequent hospitalizations or because medication 
required for that disability interferes with employment.  In 
Fanning v. Brown, 4 Vet. App. 225, 229 (1993), the Court held 
that the Board was required to consider extraschedular 
entitlement under 38 C.F.R. § 3.321(b)(1) where the record 
contains evidence that the veterans disability required 
frequent hospitalizations and bed rest which interfere with 
employability.  This case is clearly distinguishable from 
Fanning because no such evidence of record.



ORDER

Entitlement to an increased evaluation for degenerative joint 
disease and degenerative disc disease of the cervical spine 
is denied.  



		
	RONALD R. BOSCH
	Member, Board of Veterans Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1998), a decision of the Board of Veterans 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans Judicial Review Act, 
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).  The 
date which appears on the face of this decision constitutes 
the date of mailing and the copy of this decision which you 
have received is your notice of the action taken on your 
appeal by the Board of Veterans Appeals.
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