Citation Nr: 1751092	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO. 09-42 611	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in 
Lincoln, Nebraska


THE ISSUES

1. Entitlement to a disability rating in excess of 30 percent for a service-connected cervical spine disability for the period since October 22, 2014.

2. Entitlement to a disability rating in excess of 20 percent for a service-connected low back disability. 


ORDER

Since October 22, 2014, a disability rating in excess of 30 percent for the service-connected cervical spine disability is denied.

A disability rating of 40 percent, but not higher, for the service-connected low back disability is granted. 


FINDINGS OF FACT

1. Since October 22, 2014, the service-connected cervical spine disability has been manifested by painful motion which exceeds that contemplated as unfavorable ankylosis.

2. For the entire period, the service-connected low back disability has been manifested by painful motion which approximates favorable ankylosis, but which does not more nearly approximate unfavorable ankylosis. 


CONCLUSIONS OF LAW

1. Since October 22, 2014, the criteria for a disability rating in excess of 30 percent for the service-connected cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016).

2. The criteria for a disability rating of 40 percent have been met for the service-connected low back disability; the criteria for a rating in excess of 40 percent have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a veteran (the Veteran) who had active duty service from July 2000 to June 2009. 

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2017 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a June 2009 rating decision of the RO in Lincoln, Nebraska.

In an April 2016 decision, the Board granted an increased rating of 20 percent for the service-connected low back disability, granted a rating of 30 percent for the cervical spine disability for the period prior to October 22, 2014, denied a rating higher than 10 percent for the cervical spine disability for the period since October 22, 2014, denied a rating in excess of 10 percent for adjustment disorder, and dismissed a claim of entitlement to service connection for left hip sciatica. The Veteran appealed the Board's decision to the Veterans Court.

In the May 2016 implementing RO decision, the RO assigned a rating of 30 percent for the cervical spine disability for the entire period since June 7, 2009, both before and after the effective date of October 22, 2014, established by the Board.

In an April 2017 Order, pursuant to a March 2017 Joint Motion for Remand, the Veterans Court vacated the Board's decision to the extent it denied a rating higher than 20 percent for the low back, and denied a rating higher than 10 percent for the cervical spine for the period since October 22, 2014. Inexplicably, the parties to the Joint Motion did not acknowledge the fact that the RO had actually assigned a 30 percent rating for the cervical spine since October 22, 2014. Rather, they discussed entitlement to a rating in excess of 10 percent during this period, even though a rating of 30 percent had been in effect for almost 1 year at the time of the Joint Motion. The Veterans Court remanded the 2 issues to the Board for additional development consistent with the Joint Motion. The parties agreed that the appeal should be withdrawn regarding the remaining issues adjudicated in the April 2016 Board decision and requested dismissal of those issues. 

The Board has characterized the issue as entitlement to a rating in excess of 30 percent since October 22, 2014, despite the Veterans Court's explicit remand of entitlement to a rating in excess of 10 percent, as this reflects reality, and as there is no prejudice to the Veteran in amending the remanded issue in this way.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Ratings under the General Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Formula include cervical or lumbosacral strain (Diagnostic Code 5237).

A rating of 100 percent requires unfavorable ankylosis of the entire spine. 

A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 

A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A rating of 10 percent is assigned with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). 

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note (2) (See also Plate V). 

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5).

Disability of the thoracolumbar and cervical spine segments are to be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, General Formula, Note (6).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

The April 2016 Board decision and the Joint Motion are incorporated by reference for their reporting of the evidence. While the parties to the Joint Motion recited most of the clinical findings over several paragraphs in the Joint Motion, the parties did not object to the accuracy of the Board's reporting of the evidence, only to the Board's discussion of functional impairment as it pertains to the 2 disabilities. Specifically, the parties agreed with respect to both issues that: "remand is required in order for the Board to explain what impact, if any, Appellant's functional impairments, including flare-ups and their accompanying effects, have on Appellant's disability rating." 

In interpreting the Joint Motion, the Board emphasizes that entitlement to a specific disability rating for the cervical or thoracolumbar spine cannot be divorced from the rating schedule, i.e., the General Formula or the IVDS Formula. As found by the Board previously, the IVDS Formula does not provide for compensable ratings in this case. The parties made no objection to this finding. Under the General Formula, entitlement to a disability rating for the cervical or thoracolumbar spine at rating levels over 20 percent is explicitly based on limitation of range of motion, up to and including unfavorable ankylosis. The provisions regarding functional loss, 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07, apply to all joints generally, but do not provide an alternative to the rating schedule. The effect of these factors must ultimately be reduced to the impact on the rating criteria. Although these factors may cause a functional loss, they do not themselves constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Therefore, the instruction of the parties that the Board must explain the impact of the Veteran's functional impairments, including during "flare-ups," and their accompanying effects, can only be interpreted as requiring that the Board determine the additional degree of motion lost during symptom flares, as this is the only determination that could be reconciled with the General Formula.

While functional loss during flares can, in some instances, be estimated by a competent medical professional, in this case, the January 2015 VA examiner specifically stated that such estimates regarding the cervical and thoracolumbar spine could not be made without resort to speculation. The Joint Motion did not find the January 2015 examination, or any other medical evidence, to be inadequate. The parties to the Joint Motion have essentially asked the Board to do what the January 2015 VA examiner stated could not be done without speculation, i.e., to provide a medical opinion, in violation of the lineage of caselaw stretching back to Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

The Board is bound by the findings contained in the Joint Motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). 

Cervical Spine Disability

The current appeal arises from a claim of entitlement to service connection received at the RO on March 3, 2009. In a June 2009 rating decision, the RO granted service connection for a cervical spine disability, assigned an initial rating of 10 percent under Diagnostic Code 5237 (lumbosacral or cervical strain), and assigned an effective date of June 7, 2009, the day following discharge from active duty. 

A separate disability rating has been granted for neurological abnormalities of the right upper extremity, rated at 10 percent prior to January 12, 2015, and 20 percent since January 12, 2015. Those ratings are not on appeal. 

As discussed above, in April 2016, the Board granted a 30 percent rating prior to October 22, 2014, but denied any rating higher than 10 percent since October 22, 2014, the date of a VA outpatient treatment record. Then, by a Decision Review Officer decision dated in May 2016, the RO actually assigned a rating of 30 percent for the entire period since June 7, 2009. It is therefore difficult to infer what objections the parties to the Joint Motion might harbor regarding the rating actually assigned the cervical spine disability.  Nevertheless, the parties identified deficiencies in the Board's discussion of the evidence which the Board can address. 

To warrant a rating in excess of 30 percent, the evidence must show either unfavorable ankylosis of the entire cervical spine; or, unfavorable ankylosis of the entire spine. It is not sufficient to show complete bony fixation of the cervical spine or the entire spine such that no motion is possible. It must be shown that such fixation is at an unfavorable angle, such that the neutral position (0 degrees) cannot be attained, and such that the criteria set out under Note 5 are met. 

Based on the examination reports and findings cited in the Joint Motion, it can be summarized that, for the period since October 22, 2014, functional impairment of the cervical spine has consisted of flares occurring weekly and lasting for hours. Flares have occurred with cold weather and when the Veteran turns her head and neck. During flares, she cannot lift heavy things or do overhead activities. 

Flares are presumed to involve combinations of pain, weakness, fatigue, and incoordination. It is presumed that symptom flares impact the Veteran's ability to engage in employment as she has reported missing time from work. 

The Board accepts the Veteran's description of her additional impairment during flares. However, none of the additional impairments the Veteran has described more nearly approximates unfavorable ankylosis of the entire cervical spine than favorable ankylosis. Even by her own descriptions, the Veteran has always retained some flexion and extension. Despite a July 2010 finding that the Veteran's cervical spine was severely hyperlordotic, measurements have always shown that she is able to attain the neutral position, and she has not described the inability to do so during flares. Moreover, there is no assertion that her flares have been manifested by difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 

As previously found, the Veteran's symptoms do not produce a compensable rating under the IVDS Formula, and there are no additional compensable neurological abnormalities associated with the cervical spine disability.

In sum, for the period since October 22, 2014, even during symptom flares as described by the Veteran, her symptoms do not meet or more nearly approximate the criteria for any rating in excess of 30 percent under the General Formula than they do the 30 percent criteria currently assigned. As such, the Board concludes that a rating higher than 30 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Low Back Disability

The current appeal arises from a claim of entitlement to service connection received at the RO on March 3, 2009. In a June 2009 rating decision, the RO granted service connection for a low back disability, assigned an initial rating of 10 percent under Diagnostic Code 5237, and assigned an effective date of June 7, 2009, the day following discharge from active duty. In a May 2015 rating decision, the disability rating was increased to 20 percent, effective January 12, 2015, the date of a VA examination. In April 2016, the Board granted a 20 percent rating for the entire period on appeal. 

A separate rating of 20 percent is currently assigned for radiculopathy of the left lower extremity. That rating is not on appeal. 

Functional loss of the thoracolumbar spine can be assessed as consisting of pain, weakness, and stiffness that have occurred daily. Moderate flares have occurred weekly and last for hours. Flares have occurred with sitting for long periods and lasted two or three days. At these times the Veteran is unable to perform heavy lifting and overhead activities, and this has caused work absences. She has decreased her exercise and can no longer play sports. She experiences difficulty with long drives. The Veteran has reported that a simple task such as mowing the lawn or playing with her child causes pain to the lower back and must be done in small increments, limiting what activities she can take part in. Additional factors contributing to disability have included disturbance of locomotion, and interference with sitting and standing. In one year, she lost 15 days of work due to her back. 

The Board finds that the only way to comply with the Joint Motion without violating Colvin, 1 Vet. App. at 175, is to assign a rating based on favorable ankylosis. In other words, a precise degree of limited motion cannot be determined without competent medical evidence. The Board's estimation is not competent evidence. Therefore, the Board finds that a 40 percent rating is warranted based on favorable ankylosis of the entire thoracolumbar spine experienced during flares. 

However, the medical evidence of record provides an adequate basis to conclude that unfavorable ankylosis has not been more nearly approximated than favorable ankylosis, even during flares, as those episodes have been described by the Veteran. Her descriptions do not suggest a condition in which the neutral position cannot be attained. Nor do they suggest that her flares have been manifested by difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. As previously found, there is no assertion that her thoracolumbar spine disability has been productive of symptomatology that would be compensable under the IVDS Formula. Moreover, as previously found, there have been no additional compensable neurological abnormalities associated with the service-connected thoracolumbar spine disability. 

In sum, the criteria for a 40 percent rating are more nearly approximated than the criteria for a 20 percent rating. However, even with additional functional loss during symptom flares, the Veteran's symptomatology does not meet or more nearly approximate the criteria for any rating in excess of 40 percent. As such, the Board concludes that a rating higher than 40 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
	



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	L. Cramp, Counsel

Copy mailed to: The American Legion  


Department of Veterans Affairs