14-16 642
14-16 642
Board of Vet. App.Sep 30, 2016Background
- Veteran served on active duty July 2006–July 2012 and appealed November 2012 RO ratings for lumbar and cervical spine disabilities.
- VA granted service connection but assigned 10% initial ratings for both lumbar and cervical spine conditions (diagnosed as strains/degenerative changes).
- VA examiner (July 2011) recorded normal or near-normal range of motion: lumbar forward flexion 90°, combined thoracolumbar 240° (painful motion); cervical combined ROM 300° with flexion 50° and pain on rotation.
- Private notes (2012) documented muscle spasm, restricted ROM, and pain after a motor vehicle accident, but later 2013 notes showed return to pre‑accident status and no objective neurologic deficits.
- Veteran refused a follow-up VA exam after Board remand; Board therefore decided based on record evidence and resolved reasonable doubt in Veteran’s favor where applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lumbar spine rating should exceed 10% | Low back DDD/herniations and daily pain, functional limitation, and periodic 2‑week exacerbations support higher rating | Record shows only painful motion with ROM consistent with 10%; no IVDS, ankylosis, or neurologic deficits | Denied — 10% for painful motion is adequate; no evidence supports >10% |
| Whether cervical spine rating should exceed 10% | Cervical DDD/herniations, daily pain, headaches, limited ROM, and flare-ups warrant >10% | July 2011 exam shows combined ROM 300° (consistent with 10%); no IVDS or objective neurologic findings to warrant higher or separate rating for headaches | Denied — 10% under ROM/pain criteria; no separate compensable neurologic rating established |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (right to compliance with Board remand)
- D'Aries v. Peake, 22 Vet. App. 97 (substantial compliance with Board remand sufficient)
- Hartman v. Nicholson, 483 F.3d 1311 (no new VCAA notice required for downstream rating/effective date questions)
- Wood v. Derwinski, 1 Vet. App. 190 (veteran must cooperate with development; duty to assist is not one‑way)
- Thun v. Peake, 22 Vet. App. 111 (three‑step extraschedular referral framework)
- Mayfield v. Nicholson, 444 F.3d 1328 (on VA's duty to assist and obtaining records)