Citation Nr: 1757719 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-22 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for degenerative changes of the cervical spine, status-post laminectomy, in excess of 20 percent disabling from August 31, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active service from December 1982 to December 1985, from January 1991 to May 1991, from May 1994 to September 1994, from October 1994 to March 1995, and from March 1995 to August 1995. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In September 2014, the Board granted an extension of the convalescence period following cervical spine surgery through May 31, 2010 (implemented by an October 2014 rating decision), and denied cervical spine disability ratings in excess of 20 percent from April 18, 2008 to December 3, 2009 and from May 31, 2010 through July 28, 2011, and in excess of 30 percent from July 29, 2011 through August 30, 2012. The Board remanded the period from August 2012 onwards. The Board remanded the issue in September 2014, November 2016, and July 2017. The matter is once again before the Board. FINDING OF FACT The Veteran's service-connected cervical spine has been manifested by no more than functional loss more nearly approximating forward flexion of cervical spine of 20 degrees or greater, without ankylosis. CONCLUSION OF LAW The criteria for a rating for the cervical spine in excess of 20 percent have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remands The Board remanded this matter in September 2014, November 2016, and July 2017 for VA examinations, to include range of motion testing pursuant to the decision in Correia v. McDonald, 28 Vet. App. 158 (2016) (requiring testing of range of motion results indicating that joint testing was conducted for pain on both active and passive, in weight-bearing and non-weight-bearing, and of the opposite joint, if possible). In August 2017, a VA examination undertook this testing. For this reason, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veteran and his representative have not raised any argument with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Rating Criteria for the Spine Veteran is service connected for degenerative changes in the cervical spine and asserts that his disability is worse than his current 20 percent rating. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. The General Rating Formula applicable to the cervical spine provides for a 20 percent disability rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Intervertebral Disc Syndrome (IVDS) is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the General Rating Formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. The notes following Diagnostic Code 5243 define an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance." Id. (quoting 38 C.F.R. § 4.40). In August 2012, the Veteran underwent a VA cervical spine examination. The Veteran reported he had an August 2009 cervical discectomy/fusion. He reported that he had injections for pain management which helped on the right side, but not on the left side of the neck. He experienced constant throbbing/aching neck pain, which was not helped by medicine, but the Veteran "cannot do much lifting" or "look up or down too far" during flare-ups. Range of motion testing found 30 degrees of forward flexion (pain starting at 20 degrees), 20 degrees of extension (pain starting at 10), 15 degrees both left and right lateral flexion (pain for both at 10 degrees), and 45 degrees of left and right rotation (pain for both starting at 35 degrees). After three repetitions, the range of motions remained the same. Functional impairment was pain on movement and less movement than normal. Veteran had tenderness/palpation of cervical spine and abnormal spinal contour. Muscle strength was normal as was sensory examinations. Reflexes were normal, except for hypo-activity in brachioradialis and triceps, both left and right. There was an absence of intervertebral disc syndrome (IVDS) and no use of assistive devices. Diagnostic testing dating from March 2012 showed "there has been interval anterior fusion of C4-C7 with interbody grafts. There is no listhesis. There is some ossification of the anterior ligament at C2/3. There is mild spurring of the uncal vertebral joints at C3/4, right greater than left." A December 2016 VA examination indicated the Veteran had abnormal ranges of motion with forward flexion (0-45): 0 to 40 degrees; extension (0-45): 0 to 5 degrees; right lateral flexion (0-45): 0 to 10 degrees; left lateral flexion (0-45): 0 to 10 degrees; right lateral rotation (0-80): 0 to 20 degrees; and left lateral rotation (0-80): 0 to 20 degrees. Examiner noted functional loss, namely trouble looking behind him. There was no ankylosis. The Veteran had pain in range of motion in all of the above, pain with weight bearing, and localized tenderness of the neck (tender to palpation on the cervical spine); and Veteran could not perform repetitive use testing (three repetitions) because of pain. The Veteran had functional limitation due to pain, but examiner could not exam the Veteran to provide accurate ranges of motion. The Veteran had guarding resulting in abnormal gait or abnormal spinal contour. Muscle strength testing, reflex, and sensory examinations were normal (5/5) for all areas. The Veteran used crutches as assistive devices. Additional functional impairment was noted as "[t]he veteran is unable to turn his neck much at all which would make it difficult to work in any manual field of labor." In August 2017, the Veteran underwent a VA examination. The examiner noted flare-ups with heavy lifting. Ranges of motion were forward flexion (0-45): 0 to 30 degrees; extension (0-45): 0 to 10 degrees; right lateral flexion (0-45): 0 to 25 degrees; left lateral flexion (0-45): 0 to 25 degrees; right lateral rotation (0-80): 0 to 45 degrees; and left lateral rotation (0-80): 0 to 45 degrees. Otherwise, the examination reported the same findings as the prior December 2016 examination, except that the Veteran had muscle spasms resulting in abnormal gait or abnormal spinal contour. The Veteran was not noted to have IVDS of the cervical spine and the Veteran reportedly did not use an assistive device. The examiner reported that the Veteran had pain on passive range of motion and evidence of pain on non-weight bearing motion. The Board has considered the Veteran's VA treatment records dated from August 2012 onward. The Veteran submitted a variety of lay statements from family and friends, reporting on the cervical spine's impact on daily life and his relationships. These records have indicated the Veteran complained of pain. The VA records dated in May and June 2014 show that the Veteran was evaluated at the outpatient interdisciplinary pain program for pain management in the Veteran's for the back, neck, and other places. These records do not show any evidence to support an increased disability rating in excess of 20 percent for degenerative changes of the cervical spine, status post laminectomy. A rating of 30 percent is appropriate for favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine 15 degrees or less. Diagnostic testing, outlined above, has not shown ankylosis. The Veteran's forward flexion was limited at most to 20 degrees with pain. Therefore, a higher rating pursuant to Diagnostic Code 5237 is not warranted. The Board has considered whether additional functional impairment due to factors such as pain, weakness, and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, at 206-07. There is evidence of reduced function, pain on movement, and weakened movement shown in VA examinations and VA treatment documents described above. However, there is no evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion which would warrant a rating in excess of 20 percent. To the extent the Veteran's pain, weakness, or fatigability show additional limitation of motion, the Veteran's additional decrease in range of motion are contemplated by the current 20 percent rating. In sum, even considering the effects of pain, the Veteran retained the above listed ranges of motion in the cervical spine. Any additional limitation due to pain does not more nearly approximate a finding of forward flexion of the cervical spine 15 degrees or less, or of ankylosis. The Board has considered other diagnostic codes, particularly Diagnostic Code 5243, Intervertebral Disc Syndrome. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran has not been noted to have IVDS. See, e.g., August 2017 VA examination. Other examinations and VA medical records do not record or demonstrate that the Veteran had incapacitating episodes requiring physician-prescribed bed rest and treatment. Therefore, use of the General Rating Formula for Diseases and Injuries of the Spine is more beneficial to the Veteran and is appropriate. In all of the above, the preponderance of the evidence is against a finding of an increased rating for any period on appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for degenerative changes of the cervical spine, status-post laminectomy, in excess of 20 percent disabling, is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs