Citation Nr: 1801418 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-22 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating higher than 10 percent prior to July 16, 2014, and higher than 20 percent as of that date, for right ankle sprain with osteoarthritis. 2. Entitlement to a rating higher than 10 percent prior to July 16, 2014, and higher than 20 percent as of that date, for left ankle sprain with osteoarthritis. 3. Entitlement to a rating higher than 20 percent for cervical spine degenerative disc and degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board remanded this case in September 2016. The Veteran testified at a hearing before the undersigned in March 2016. A transcript is of record. The Veteran has also claimed service connection for headaches secondary to his service-connected cervical spine disability. In an August 2017 opinion, a VA examiner concluded that the Veteran had tension headaches that were at least as likely as not related to his cervical spine disability. This issue has not yet been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it. It is referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's cervical spine disability is not manifested by forward flexion limited to 15 degrees or less, ankylosis, or associated neurologic abnormality. 2. Written statements dated in November 2017 which contain the Veteran's name and claim number clearly express his wish to withdraw the appeal of the ratings assigned his bilateral ankle disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for cervical spine degenerative disc and degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes (DCs) 5242, 5243 (2017). 2. The criteria for withdrawal of an appeal with respect to the ratings assigned the Veteran's bilateral ankle sprains with osteoarthritis are satisfied. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for Cervical Spine Disability A. Law VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see, generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Analysis The Veteran's cervical spine disability has been assigned a 20 percent rating under 38 C.F.R. § 4.124a, Diagnostic Codes (DC's) 5242-5243, which pertain to degenerative arthritis of the spine and intervertebral disc syndrome, respectively. The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), as provided in DC 5243. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Formula for Rating IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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. A 20 percent evaluation is assigned 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 evaluation is assigned for forward flexion of the cervical spine of 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. These criteria are applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. In this regard, the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as a condition in which the entire cervical spine is fixed in flexion or extension. Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The preponderance of the evidence weighs against a rating higher than 20 percent for the Veteran's cervical spine disability. The VA examination reports dating from April 2011 through January 2017, and private and VA treatment records consistently show forward flexion of the cervical spine exceeding 15 degrees, including after repetitive use testing. The evidence does not show that forward flexion of the cervical spine has been limited to 15 degrees or less during a flare-up, or that any such limitation has lasted long enough or occurred frequently enough to warrant a higher or staged rating. Cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999). Thus, the criteria for a higher rating based on range of motion are not satisfied, including with consideration of the DeLuca factors. See 38 C.F.R. §§ 4.40, 4.45. The VA examination reports show that the Veteran has not had ankylosis of the cervical spine, favorable or unfavorable. Thus, the rating criteria for an evaluation in excess of 20 percent are not satisfied or more nearly approximated. The VA examination reports show findings that the Veteran does not have neurologic abnormalities associated with his cervical spine disability. Thus, separate ratings for associated neurologic abnormalities are not warranted. The criteria for a higher rating under the Formula for Rating IVDS have not been satisfied during the pendency of this claim. To assign a rating under this formula, there must be incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). The Veteran has not stated, and the evidence of record does not otherwise show, that he has had such incapacitating episodes during the pendency of this claim. Thus, the criteria for a rating higher than 20 percent under the Formula for Rating IVDS are not satisfied. Because the Veteran's cervical spine disability has been assigned a 20 percent rating under the General Rating Formula, a separate rating may not be assigned for arthritis of the cervical spine under 38 C.F.R. § 4.71a, DC 5003, which pertains to arthritis. Such a rating would result in compensating twice for manifestations of the same disability under different diagnoses, in violation of the rule against pyramiding, and is also expressly prohibited by the provisions of DC 5003. See 38 C.F.R. § 4.71a. The Veteran stated in his February 2013 notice of disagreement (NOD) that he had headaches due to his cervical spine disability. This issue has been referred to the AOJ to address in the first instance, as discussed in the INTRODUCTION section. The Veteran also stated in the February 2013 NOD that he feels intermittent "electric shocks" if jarred or if he hits bumps in his vehicle. The shocks went to his arms, and particularly to the middle and little fingers. The VA examiners have not found neurological problems associated with the Veteran's cervical spine disability. His subjective intermittent pain is contemplated by the criteria in the General Rating Formula, and cannot be a basis for a rating higher than 20 percent unless those criteria are satisfied. See 38 C.F.R. § 4.71a, General Rating Formula, Introductory Language; see also 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003). The evidence does not otherwise show that these symptoms cause additional disability or functional impairment beyond what is compensated by the 20 percent rating of the Veteran's cervical spine disability. The Board has considered the Veteran's statements and other evidence regarding the functional effects of his cervical spine disability. For example, in a March 2011 VA statement, the Veteran wrote that his stiffness of the neck and decreased rotation has caused limited visibility while driving. The Board finds that this and other effects of the Veteran's pain and limited motion of the cervical spine in various contexts of daily life and employment are contemplated by the rating schedule, whose criteria serve as markers of disability at different levels of severity, even if no description of how such disability may affect functioning in the context of life and work is provided in the rating schedule. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017). The evidence does not show that the Veteran's symptoms and functional impairment are different from, or more severe than, the occupational impairment contemplated by the General Rating Formula such as to render its application impractical in this case. Thus, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Because the applicable criteria are not satisfied, as explained above, a rating higher than 20 percent may not be assigned. Because the Veteran's cervical spine disability has not satisfied or more nearly approximated the criteria for a rating higher than 20 percent at any point during the period under review, for the reasons discussed above, staged ratings are not warranted. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In finding that the criteria for a higher rating have not been satisfied, the Board does not discount the Veteran's symptoms and functional impairment, as described by him. The Board must focus on the applicable regulatory framework, and its decision is based solely on whether the rating criteria for a given evaluation are satisfied, as defined by VA law. Because the preponderance of the evidence weighs against a rating higher than 20 percent for the Veteran's service-connected cervical spine disability, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. II. Withdrawal of Appeal Written statements dated in November 2017, which contain the Veteran's name and claim number, clearly express his wish to withdraw his appeal of the ratings assigned his service-connected bilateral ankle strains with osteoarthritis. The Veteran's withdrawal was received prior to a decision by the Board on these issues. The criteria for withdrawal of an appeal are satisfied. See 38 C.F.R. § 20.204(b). When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed. Accordingly, the issues of entitlement to increased ratings for bilateral ankle strains with osteoarthritis are dismissed. See 38 U.S.C. § 7105(d). ORDER A rating higher than 20 percent for cervical spine degenerative disc and degenerative joint disease is denied. The issue of entitlement to a rating higher than 10 percent prior to July 16, 2014, and higher than 20 percent as of that date, for right ankle sprain with osteoarthritis is dismissed. The issue of entitlement to a rating higher than 10 percent prior to July 16, 2014, and higher than 20 percent as of that date, for left ankle sprain with osteoarthritis is dismissed. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs