Citation Nr: 1802970 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-40 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher evaluation for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine, rated 20 percent prior to January 16, 2014. 2. Entitlement to a higher evaluation for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine (hereinafter cervical spine disability), rated 30 percent from January 16, 2014. ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1984 and from December 1987 to July 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which continued a 20 percent rating for the service-connected cervical spine disability. Jurisdiction is currently with the RO in Roanoke, Virginia. In a July 2015 rating decision, the RO increased the cervical spine disability rating to 30 percent, effective January 16, 2014. As this rating did not constitute a full grant of the benefits sought, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran was previously represented in this matter by a private attorney. In June 2013, before the appeal was certified to the Board, he withdrew by motion from this case. In February 2017, the Board contacted the Veteran by letter in order to provide him an opportunity to appoint new representation, but he did not reply within the requested 30 days. Therefore, the Board finds that the Veteran is unrepresented in this matter. The Veteran initially requested a videoconference hearing, but withdrew his request in February 2016. The Board remanded the appeal for further development in March 2017, which has been completed. The issue of entitlement to a TDIU was included. A September 2017 rating decision granted TDIU. FINDING OF FACT For the entire appeal period, the Veteran's cervical spine disability more nearly approximated forward flexion less than 30 degrees when considering functional impairment; ankylosis and incapacitating episodes due to IVDS lasting at least 4 weeks was not shown. CONCLUSIONS OF LAW 1. Prior to January 16, 2014, the criteria for 30 percent rating and no higher, for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. From January 16, 2014, the criteria for a disability rating in excess of 30 percent for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran's cervical spine disability is currently rated at 20 percent prior to January 16, 2014, and 30 percent thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. He seeks higher ratings. The appeal period before the Board begins on February 29, 2007, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); see February 2008 VA Form 21-4138, Statement in Support of Claim. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155 (2012). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that multiple distinct degrees of disability might be experienced which result in different compensation levels from the time the increased rating claim was filed until a final decision is made. Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Spine disabilities are generally rated under the same formulas, with the exception of intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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 rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71(a), DCs 5235-5243, Note (2) (2017). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A VA examination is adequate only when the examiner discusses whether a loss in the range of motion is attributable to pain. See Mitchell, 25 Vet. App. at 43-44; DeLuca, 8 Vet. App. at 202. The examiner must also expressly comment on active and passive range of motion testing, and weight-bearing and non-weight-bearing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition to the General Rating Formula, the Formula for Rating IVDS Based on Incapacitating Episodes provides rating for intervertebral disc syndrome. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A. Rating Prior to January 16, 2014 Historically, private treatment records indicated the Veteran was treated with medication to maintain his chronic pain reports and no surgery was documented. Examiners noted decreased range of motion in the cervical spine with pain, but no specific ranges of motion were expressed in terms of degrees. The notes indicated that his cervical pain affected his ability to work. An April 2008 private evaluation shows cervical spine range of motion included forward flexion to 50 degrees, extension to 10 degrees, left lateral rotation to 30 degrees and right lateral rotation to 40 degrees. Pain was reported with all maneuvers. Motor and muscle strength testing were normal. Private treatment notes dated in April 2008 from Dr. J. M. show the Veteran had markedly decreased range of motion in all directions in the cervical spine. The Veteran was afforded a VA examination in April 2008. The Veteran reported that his neck pain caused him to miss 15 days of work from April to December 2007, although this rest was not physician-prescribed. He also reported constant pain with flare-ups that occurred three times per day. His level of pain on a scale of 1 to 10 was noted to be 8 out of 10. Flare-ups lasted for an hour and a half. Range of motion testing showed forward flexion was to 26 degrees, extension to 29 degrees, left lateral rotation to 44 degrees, and right lateral rotation to 43 degrees. Lateral flexion was to 31 on the right and 21 on the left. The combined range of motion was 194 degrees. The examiner reported that the Veteran was unable to do repetitive motion testing because of pain. Gait was normal. The examiner noted that the Veteran's pain was out of control such that he could not work. An October 2008 physical therapy record shows range of motion included forward flexion to three finger widths from chin to chest, and extension to 15 degrees. However, a June 2009 Social Security disability evaluation test shows range of motion included forward flexion was to 30 degrees and extension to 25 degrees with increased discomfort in the posterior neck. Cervical rotation varied from 25 to 35 degrees to each side on two attempts. The Veteran's ability to stand and or walk, and sit was determined to be limited to 6-8 hours in an 8 hour day. SSA records reflect that the Veteran reported that he is unable to stand, lift, bend, carry, or exert himself for extended periods of time. SSA determined that his reported limitations were generally supported by the medical evidence. A 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less or favorable ankylosis of the entire cervical spine. The Board recognizes that the evidence shows the Veteran's forward flexion was limited. The aforementioned findings in October 2008 and June 2009 reflect markedly limited range of motion; however, the only specific range of motion measurements show forward flexion was not limited to less than 30 degrees. Therefore, these results fall short of higher rating criteria under the General Rating Formula. However, the Board has considered the Veteran's report of constant pain, flares, and functional limitations. Indeed at the 2008 VA examination, he reported daily flare-ups that last almost 5 hours a day combined, and he was unable to perform repetitive motion tests due to pain. Considering these additional factors such as pain and less movement than normal, the Board will resolve doubt in favor of the Veteran and grant the next highest evaluation of 30 percent. This 30 percent rating adequately contemplates any functional loss due to pain in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202. A rating in excess of 30 percent is not warranted as no ankylosis is shown by the competent medical evidence. Also, the assignment of a higher rating under the IVDS Formula is not appropriate as there is no evidence of IVDS with incapacitating episodes lasting at least four weeks. Finally, the rating schedule provides guidance for separately rating neurologic impairment. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The Veteran's neurologic complaints and objective sensory abnormalities (radiculopathy) affecting the bilateral upper extremities have already been assigned separate ratings under 38 C.F.R. § 4.124a, DC 8610. See September 2017 rating decision. As the Veteran has not expressed disagreement with these assigned ratings, the matter of entitlement to higher ratings is not before the Board at this time. B. Rating from January 16, 2014 At his January 2014 VA examination, the Veteran's cervical spine range of motion testing included forward flexion and extension to 10 degrees, with pain noted. The examiner noted the Veteran was very reluctant to move beyond 10 degrees in any direction. The Veteran denied flare-ups. No guarding or muscle spasms were noted. The examiner diagnosed the Veteran with IVDS and noted the Veteran reported having incapacitating episodes having a total duration of at least one week but less than two weeks, during the past 12 months. Ankylosis was not diagnosed. Private treatment records during this time reported continuous pain management through medication, but no significant changes in pain symptomatology. The clinicians reported pain was noted with extension and rotation range of motion testing, but no specific ranges of motion in terms of degrees were provided. No ankylosis was reported. Pursuant to the March 2017 Board remand, the Veteran underwent a VA examination in June 2017. Range of motion testing showed forward flexion to 45 degrees and extension to 35 degrees, with pain noted. The Veteran denied flare-ups. He reported functional loss when sitting in a certain position or when using his neck. The examiner noted no pain was evident during weightbearing testing. No objective pain was noted on palpation. The Veteran performed repetitive use testing without additional loss in range of motion. No assistive devices were used. No guarding or muscle spasms were noted. No ankylosis was found. The examiner noted IVDS, but reported no incapacitating episodes that required bedrest. Based on the evidence of record, a rating higher than 30 percent is not warranted. A 40 percent rating is warranted when unfavorable ankylosis of the cervical spine is found. From January 4, 2014, onward, there is no competent evidence of ankylosis in the record. Furthermore, because the 30 percent evaluation is the maximum for limitation of motion without ankylosis, further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A higher rating is not possible under the Formula for rating IVDS, as there is no competent or credible evidence incapacitating episodes (requiring bedrest as prescribed by a physician) for a period of at least four weeks per 38 C.F.R. § 4.71a. The Veteran's neurologic complaints and objective sensory abnormalities (radiculopathy) affecting the bilateral upper extremities have already been assigned separate ratings under 38 C.F.R. § 4.124a, DC 8610. See September 2017 rating decision. In short, the preponderance of the evidence is against a rating in excess of 30 percent for the service-connected cervical spine disability from January 16, 2014. Therefore, the Board declines to assign a higher rating of 40 percent for this appeal period. There are no additional expressly or reasonably raised issues presented on the record. ORDER Prior to January 16, 2014, a 30 percent rating and no higher, for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine is granted. From January 16, 2014, a rating in excess of 30 percent for cervical spondylosis with central canal stenosis, C5-C6, C6-C7, degenerative disc disease, herniated intervertebral disc syndrome, cervical spine is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs