Citation Nr: 1804862 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-31 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to October 2, 2013, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1999 to June 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's cervical spondylosis is not productive of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, ankylosis, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months during the relevant period. 2. From March 23, 2011 to October 1, 2013, the preponderance of the evidence indicates that the Veteran's degenerative joint disease of the lumbar spine was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, ankylosis, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months during the relevant period. 3. From October 2, 2013, the preponderance of the evidence indicates that the Veteran's degenerative joint disease of the lumbar spine has not been productive of forward flexion of the thoracolumbar spine at 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months during the relevant period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for cervical spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5235-5243 (2017). 2. From March 23, 2011 to October 1, 2013, the criteria for an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5235-5243 (2017). 3. From October 2, 2013, the criteria for a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The schedular criteria for the rating of spine disabilities evaluates intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, a 10 percent rating is assigned for 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, a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for 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, combined range of motion of the thoracolumbar spine not greater than 120 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 evaluation is warranted 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; or, forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. Unfavorable ankylosis is a condition in which 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. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). At the outset, the Board notes that during the pendency of the appeal, the principal medical evidence material to the Veteran's claims for increased ratings for her cervical spondylosis and lumbar spine degenerative disc disease (DDD) is contained in the reports of VA spine examinations in July 2011, October 2013, and October 2017. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the Veteran's disabilities. Regarding the Veteran's service-connected cervical spondylosis, the Board finds that a disability rating in excess of 10 percent is not warranted. During the period on appeal, the Veteran did not have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. In addition, the combined range of motion of the cervical spine was greater than 170 degrees, ranging from 185 degrees in the October 2017 VA examination to 300 degrees during the July 2011 VA examination. The VA examinations noted that the Veteran's cervical spine was not fixed in flexion or extension. Accordingly, there is no evidence of record indicating that the Veteran experienced symptomatology warranting a higher disability evaluation for her service-connected cervical spondylosis. Turning to the Veteran's service-connected lumbar spine DDD, the Board finds that the currently assigned 10 percent disability rating from March 23, 2011 to October 1, 2013, and the assigned 20 percent disability rating from October 2, 2013 onward, are appropriate. From March 23, 2011 to October 1, 2013, the Veteran did not have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 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. During the relevant time period, the Veteran's combined range of motion was 205 degrees. See July 2011 VA Examination. In addition, forward flexion of the thoracolumbar spine was 80 degrees. The relevant July 2011 VA examination also noted that the Veteran's entire thoracolumbar spine was not fixed in flexion or extension. Accordingly, there is no evidence of record indicating that the Veteran experienced symptomatology warranting a higher disability evaluation for her lumbar spine disability during this period. From October 2, 2013, the Veteran does not have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During the relevant time period, the Veteran's combined range of motion was to 145 degrees or higher. In addition, forward flexion of the thoracolumbar spine was greater than 30 degrees. See October 2013 VA Examination (forward flexion at 60 degrees); October 2017 VA Examination (forward flexion at 40 degrees). Both VA examinations noted that the Veteran's entire thoracolumbar spine was not fixed in flexion or extension. Accordingly, the currently assigned 20 percent disability evaluation during this time period is appropriate. In making its determination, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca. However, increased evaluations for the Veteran's cervical and lumbar spine disabilities are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned ratings during the relevant time periods. The most recent October 2017 VA examination indicates that the Veteran reported experiencing functional limitations as a result of the pain in her cervical and lumbar spine. However, there was no additional loss of function or range of motion after three repetitions for either the cervical or lumbar spine. As such, the Veteran did not demonstrate, and the evidence of record does not show that, even with consideration of pain and the functional impact of pain, the Veteran had increased limitation of motion for forward flexion of her cervical and lumber spine. Therefore, the Board finds that the currently assigned disability ratings are appropriate, as they contemplate the Veteran's complaints of pain and functional loss. The Board has also considered whether a higher evaluation is warranted for the Veteran's cervical spondylosis and lumbar spine DDD under DC 5243, which contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a. Intervertebral disc syndrome (IVDS) may be evaluated under the General Rating Formula or under the IVDS Formula whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Under the IVDS Formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is 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. C.F.R. § 4.71a, DC 5243, Note (1). In this case, there is no medical evidence on file whatsoever showing incapacitating episodes of such requiring bed rest prescribed by a physician. As there are no VA treatment records for incapacitating episodes requiring bed rest prescribed by a physician, higher ratings under the IVDS Formula for the Veteran's service-connected cervical spondylosis and lumbar DDD are not warranted. The Board has also considered whether the Veteran has any associated objective neurological abnormalities associated with her service-connected cervical spondylosis and lumber spine DDD. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran is already in receipt of separate disability ratings for radiculopathy of the right and left lower and upper extremities. The ratings for these disabilities are not on appeal; indeed, in her May 2013 Notice of Disagreement, the Veteran referenced only the July 2012 rating decision granting initial service connection for the spine disorders and not the November 2012 rating decision separately granting service connection for radiculopathy of the extremities. Therefore, the question becomes whether the Veteran has any other associated neurological abnormalities associated with her back disabilities, such as those affecting the bowel and bladder, but none have been shown by the record. As such, there is no evidence of record to warrant any additional separate disability ratings on this basis. Lastly, the Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. For example, she is competent to report that she experiences certain symptoms, such as pain, and she is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that her disabilities are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training, expertise, and credentials necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. For the foregoing reasons, the Board finds that a disability rating in excess of 10 percent for cervical spondylosis is not warranted. In addition, the Board finds that a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to October 2, 2013, and in excess of 20 percent thereafter, is not warranted. The claims must accordingly be denied. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the Veteran is already in receipt of TDIU for her service-connected disabilities; therefore, no further discussion is warranted. 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 (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). ORDER Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis is denied. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to October 2, 2013, is denied. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine from October 2, 2013, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs