BVA Case 06-0019: Back

In the December 2005 decision here on appeal, the Board determined that there was no CUE in the 1992 RO decision that assigned a single evaluation for residuals of head and neck injury and that an initial disability rating above 20% under DC 5290 was not warranted for the cervical spine because the evidence did not show a greater disability than contemplated in the moderate limitation of motion in the rating schedule.

Specifically, he argues: (1) The Board failed to comply with the April 2005 remand instructions in that it did not address 38 C.

25(b); and (2) the Board failed to support its finding that a 1992 VA neurology examination reported that the appellant's headaches were his only disabling manifestation, when, in fact the VA neurologist diagnosed, in part, residual whiplash to the neck.

25(b) is and was only permitted for separate disabilities, and the Board found that the medical evidence did not undebatably show the existence of a separate neck disability, the Board adequately addressed the CUE claim, notwithstanding its failure to address the regulation.

In addressing the CUE claim, the Board noted that the evidence that was before the RO at the time of its decision included the SMRs and the September 1992 VA neurology and spine examinations.

The Board concluded that the evidence before the RO in 1992 did not compel a finding of service connection separately for a cervical spine condition.

The Board found that it was not CUE to read the September 1992 neurology examination as containing a single diagnosis and that because there was no clearly articulated diagnosis of a current cervical spine disability .

The Board found that the regulations supported the RO's determination to assign a single rating reflecting the diagnosis of post-concussion headache.