Citation Nr: 18154115
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-19 790
DATE:	November 29, 2018
ORDER
Entitlement to an initial rating of 20 percent, but not greater, for degenerative disc disease of the cervical spine is granted.
Entitlement to an initial compensable rating for peptic ulcer disease is denied.
FINDINGS OF FACT
1. The combined range of motion of the cervical spine is less than 170 degrees; however, even in consideration of his complaints of pain, pain on motion, and limited function, the Veteran’s cervical spine disability does not result in forward flexion limited to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes of intervertebral disc syndrome.
2. The symptoms of the Veteran’s peptic ulcer disease do not manifest as a mild ulcer with recurring symptoms once or twice yearly. 

CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating, but not greater, for degenerative disc disease of the cervical spine have been met.  38 U.S.C. § 1155, 38 C.F.R.  § 4.71a, Diagnostic Code 5243. 
2. The criteria for entitlement to a compensable rating for peptic ulcer disease have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.321, 4.97, Diagnostic Code 7305. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from January 1954 to March 1962 and March 1962 to February 1983.  This matter comes before the Board from an October 2013 rating decision.  The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in January 2018. The transcript is in the record. 
The Board remanded the matter for additional development in May 2018, to include scheduling the Veteran for a VA examination. Such was based on the Veteran reporting that his symptoms had worsened. The Veteran was scheduled for a VA examination in July 2018 to determine the current severity of his cervical spine disability and peptic ulcer disease. He failed to report to the scheduled examinations. An August 2016 supplemental statement of the case (SSOC) advised the Veteran that he had failed to report for the scheduled examinations, and that good cause had not been presented for his absence. He was asked to advise the RO when he would be ready to report. He was also given the option of submitting a completed and disability benefits questionnaire (DBQ). He did not respond.
The Veteran’s representative acknowledged the Veteran failed to report for the examinations and noted that there was no evidence showing when and how he was notified. There was no indication that the Veteran did not receive notification or that there was good cause for the Veteran’s failure to report. Indeed, as noted above, the Veteran did not respond to the RO’s request to submit for the examination or provide a DBQ. There is no duty to attempt to provide another examination. Further, as these are claims for initial ratings, the Veteran’s claims will be rated based on the evidence of record. 38 C.F.R. § 3.655.
The Veteran provided testimony at a September 2015 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In August 2017, the Board notified the Veteran that the VLJ that conducted the September 2015 hearing was no longer employed by the Board and that he had the opportunity to testify at another hearing. The Veteran requested a new hearing. The Veteran provided testimony before the undersigned in January 2018. Transcripts of the September 2015 and January 2018 hearings are of record.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R.  § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012).
Increased Rating
1. Entitlement to a rating in excess of 10 percent for a cervical spine disability 
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2002); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3.
In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999).
Under the General Rating Formula for Diseases or Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine is not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present. 
A 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine. 
Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. 
Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).
The Veteran’s clinical records show that he was treated for chronic neck pain, but do not describe the results of any specific range of motion testing or findings consistent with muscle spasm or guarding, abnormal spinal contour, reversed lordosis, or abnormal kyphosis.  The Veteran has been receiving separate compensable 20 percent ratings for both right and left upper extremity radiculopathy since August 2012.  These ratings have not been appealed and are not before the Board.
In September 2013, the Veteran was afforded a VA examination.  The Veteran reported that during flare-ups he must stop what he is doing and find a new position to alleviate the pain.  On examination, the Veteran demonstrated forward flexion to 40 degrees with additional limitation due to pain, extension to 45 degrees with no objective evidence of pain, right and left lateral flexion to 30 degrees with no additional limitation due to pain, and left and right lateral rotation to 80 degrees or greater with no additional limitation due to pain.  Repetitive use testing was conducted and no additional limitation was noted.
In December 2014, the Veteran was afforded another VA examination.  He reported severe pain when turning his head or leaning his head back.  The pain is relieved somewhat when the activity is stopped.  On examination, the Veteran demonstrated flexion to 45 degrees or greater with no evidence of pain, extension to 35 degrees with no additional limitation due to pain, right and left lateral flexion to 30 degrees with no additional limitation due to pain, and right and left rotation to 60 degrees with no additional limitation due to pain.  Repetitive use testing was conducted and no additional limitation was noted.  
In March 2016, the Veteran was afforded a VA examination. He reported his neck cracked with movement, cramps in arms and feet, sharp pain in the back of his head, and passing out when he looks up.  He reported difficulty looking up, right, and left.  On examination, he demonstrated flexion to 45 degrees, extension to 0 degrees, right and left lateral flexion to 40 degrees, and right and left rotation to 75 degrees. Repetitive use testing was conducted and no additional limitation of range of motion was noted.  No pain was noted during this examination. 
At the January 2018 Board hearing, the Veteran described difficulty looking up and to the sides.  He stated that he uses an at home traction device, weekly massages, and physical therapy, when he is able to get an appointment, to treat his cervical spine. 
The Veteran submitted an April 2018 private physical therapy report containing range of motion measurements. He demonstrated flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 23 degrees, and left lateral rotation to 28 degrees. The combined range of motion of the cervical spine was 106 degrees.  There was no indication of additional loss of motion due to pain.  
Based on the foregoing, the Veteran has demonstrated a combined range of motion less than 170 degrees. Such meets the requirements for assigning a 20 percent rating. However, the criteria for a higher (30 percent) rating have not been met. There has been no time during the appeal period where the Veteran demonstrated forward flexion of the cervical spine limited to 15 degrees or less. There is also no indication of ankylosis of the cervical spine.  
The Board has considered whether higher disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; Brown v. DeLuca, 8 Vet. App. 202. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. 
The Veteran is certainly competent to report neck pain and difficulty rotating his.  Such was figured when his range of motion was measured. It is also emphasized that an attempt was made to afford the Veteran a new VA examination, which may have shown a worse range of motion, but that he failed to report for that examination. Additionally, neither the VA examinations, nor the private physical therapy report indicated pain or any additional functional loss as a result of pain.  Overall, the Veteran’s treatment records do not demonstrate additional functional limitations that would support the assignment of a rating higher than 20 percent.    
Consideration has been given as to whether a higher rating could be assigned due incapacitating episodes in intervertebral disc syndrome (IVDS). A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).
The evidence of record does not show that the Veteran has experienced any IVDS for his cervical spine disability. The September 2013 and December 2014 VA examiners noted that the Veteran had a diagnosis of IVDS, but neither noted any incapacitating episodes.  The March 2016 VA examiner indicated that the Veteran did not have cervical spine IVDS and did not note any incapacitating episodes. In addition, the record does not show that the Veteran has been prescribed any bed rest to treat his cervical spine disability during the course of his appeal, and there is no contention to the contrary. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate and the Veteran’s cervical spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 
2. Entitlement to a compensable rating for peptic ulcer disease
The Veteran seeks an increased rating for his peptic ulcer disease, rated at non-compensable throughout the period on appeal.  He maintains that he suffers from symptoms more severe than what is contemplated by his current disability rating.
Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities. 
When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14. 
Where service connection 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.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
The Veteran’s peptic ulcer disease is currently evaluated under 38 C.F.R. § 4.114, DC 7305, for duodenal ulcer disease.  Under DC 7305, a 10 percent evaluation is warranted for a mild ulcer with recurring symptoms once or twice yearly.  A 20 percent evaluation is warranted for a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent evaluation contemplates a moderately severe ulcer, less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A rating of 60 percent is assigned to severe ulcers with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.
The relevant medical evidence of record includes VA and private treatment records, as well as lay statements from the Veteran.
The Veteran was afforded a VA examination in September 2013, the examiner noted that the Veteran was not experiencing symptoms at that time and was not taking continuous medication to treat the condition.  No incapacitating episodes due to the symptoms of any stomach condition were noted.  The examiner did not find that the condition caused any functional impairment. 
Another VA gastrointestinal examination was conducted in March 2016. At that time, the Veteran reported symptoms that included vomiting, and discomfort.  He described treating his flare ups with an antacid or milk, which usually resolved the issue in 10 – 15 minutes.  His treatment also included a bland diet, aluminum hydroxide 400mg, magnesium hydroxide 400mg, and simethicone.  The examiner did not find any functional limitations caused by the condition.  
The 2016 examiner found that although the Veteran reported severe symptoms of peptic ulcer disease, there was no objective evidence to support his current symptom claims.  Thus, the examiner did not find the Veteran’s peptic ulcer manifested as mild with recurring symptoms once or twice a year, moderate with recurring symptoms two to three times a year averaging 10 days in duration or with continuous moderate manifestations.  The examiner did not note definite substantial impairment to the Veteran’s health, such as weight loss or anemia.  
At the January 2018 hearing, the Veteran reported symptoms of regurgitation or vomiting, sometimes spitting up blood, as well as stomach and chest pain.  The Veteran reported that these symptoms happen weekly, and are worsened with stress.  The Veteran stated that available over the counter medication are no longer effective and he has been eating a raw potato which provides symptom relief for a day or so.
The Veteran is competent to report observable symptoms, such as pain, nausea, or vomiting. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities have been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which these disabilities are evaluated. The Board accords these objective records greater weight than the Veteran’s subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). 
The Veteran reports severe symptoms associated with his ulcer. However, as discussed, the medical records are largely silent as to complaints and treatment for his peptic ulcer disease. The evidence does not show the Veteran had moderate symptoms of peptic ulcer disease, such as episodes of severe symptoms two to three times a year averaging 10 days in duration or with continuous moderate manifestations. There is no indication the Veteran had weight loss due to his peptic ulcer disease.  The medical treatment records and VA examination do not show the Veteran had symptoms of anemia.  There has been no evidence of peptic ulcer disease symptoms of recurrent hematemesis, melena, or anemia.  Further, to the extent that the severity of his ulcer has worsened since his last examination, the Board again notes that he failed to report for a scheduled examination, and that a review of his appeal is based on the evidence of record, which does not demonstrate even mild symptomatology. Accordingly, the preponderance of the evidence is against a compensable rating.
In sum, a higher rating for peptic ulcer disease for the period on appeal is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim of entitlement to increased ratings.  38 U.S.C. § 5107. 
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Rekowski, Associate Counsel 

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