Citation Nr: 1804874 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 686A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1995 to November 1998 and from May 2004 to November 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Winston, Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for cervical spine degenerative disc disease, rated 10 percent, effective November 24, 2011. The Veteran's record is now in the jurisdiction of the St. Petersburg, Florida, RO. [A March 2015 rating decision granted service connection (and separate ratings) for right and left upper extremity cervical radiculopathy. The Veteran did not file a notice of disagreement with that determination.] In January 2018 the Veteran filed a claim seeking an increased rating for right upper extremity cervical radiculopathy, which has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT Prior to February 29, 2016, the Veteran's cervical spine disability was not shown to be manifested by forward flexion limited to 30 degrees or less, combined range of motion limited to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; from February 29, 2016 to April 3, 2017, the cervical spine disability is shown to have been manifested by forward flexion limited to 30 degrees (but not to 15 degrees or less); from April 3, 2017, the cervical spine disability is not shown to have been manifested by forward flexion limited to 30 degrees or less, combined range of motion of the cervical spine limited to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; at no time under consideration is the disability shown to have required bedrest prescribed by a physician or to have been manifested by neurological manifestations other than upper extremity radiculopathy; the cervical surgical scar is not shown to have been painful, unstable, or to have caused any functional limitations. CONCLUSION OF LAW The Veteran's service connected cervical spine disability warrants "staged" ratings of no more than 10 percent prior to February 29, 2016; (an increased rating of) 20 percent (but no higher) from February 29, 2016 to April 3, 2017; and no higher than 10 percent from April 3, 2017. 38 U.S.C. § 1155, 5107, 5110 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this appeal is from the rating decision that granted service connection for the Veteran's cervical spine disability and assigned a disability rating and effective date for the award, the purpose of statutory notice was met, and such notice is no longer necessary. A statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. All pertinent private and VA treatment records are associated with the record. The Veteran was afforded VA examinations in August 2014, February 2016, and April 2017. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Degenerative disc disease of the cervical spine is rated under Code 5243, which provides for a 10 percent rating when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine is 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 rating is to be assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine is 170 degrees or less; or there is 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 to be assigned when forward flexion of the cervical spine is 15 degrees or less; or for favorable ankylosis of the entire cervical spine. A 40 percent rating is to be assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. A September 2010 service treatment record (STR) notes an X-Ray showed minimal to mild early arthritic spurring at the C5-C6 level. A January 2011 STR notes complaints of chronic neck pain that began approximately two years prior. On August 2014 VA examination cervical spine active range of motion after three repetitions was: forward flexion 0 to 40 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 40 degrees, and right and left lateral rotation 0 to 70 degrees. It was noted that the Veteran did not have localized tenderness, muscle spasm or guarding of the cervical spine. Examination found moderate pain of the right and left upper extremities, and moderate right and left upper paresthesia and/or dysesthesias. It was noted that the spine was not ankylosed. A cervical spine scar was noted to not be painful or unstable, and to not cover an area greater than 39 sq cm. On February 2016 VA examination the diagnoses were degenerative arthritis of the cervical spine and intervertebral disc syndrome (IVDS). On examination the Veteran reported flare-ups. Range of motion testing found forward flexion of 0 to 30 degrees, extension of 0 to 10 degrees, right and left lateral flexion of 0 to 30 degrees, each, and right and left lateral rotation of 0 to 40 degrees, each. Examination showed localized tenderness that did not result in abnormal gait or abnormal spinal contour and no muscle spasm or guarding. The spine was not ankylosed. It was noted that the IVDS did not require bed rest prescribed by a physician during the twelve months prior to examination. A scar that was not painful or unstable and with a total area less than 39 square cm. was noted. On April 2016 private examination the diagnoses were degenerative arthritis of the spine and spinal fusion. The examiner indicated that the Veteran did not have IVDS. The Veteran reported flare-ups when pain radiated down into the hands/fingers and there was numbness of the fingers. Range of motion testing found forward flexion of 0 to 40 degrees, extension of 0 to 30 degrees, right and left lateral flexion of 0 to 40 degrees, each, and right and left lateral rotation of 0 to 60 degrees, each. The provider hypothesized that the range of motion during reported flare-ups would be equivalent to forward flexion of 0 to 25 degrees, extension of 0 to 25 degrees, right and left lateral flexion of 0 to 25 degrees, each, and right and left lateral rotation of 0 to 45 degrees, each. It was noted that there was no localized tenderness, guarding or muscle spasm of the cervical spine. On April 2017 VA examination the diagnosis was cervical spine degenerative disc disease and C5-7 fusion with bilateral upper extremity radiculopathy. The examiner noted that the Veteran had IVDS of the cervical spine that had not required bed rest prescribed by a physician during the 12 months prior to the examination. Range of motion testing found forward flexion of 0 to 45 degrees, extension of 0 to 15 degrees, right lateral flexion of 0 to 20 degrees, left lateral flexion of 0 to 30 degrees, and right and left lateral rotation of 0 to 60 degrees, each. Examination found objective evidence of localized tenderness (it was noted that examination was during a flare-up). There was no muscle guarding, and the spine was not ankylosed. On review of the record, the Board finds that the severity of the Veteran's cervical spine disability has varied during the evaluation period (and that "staged" ratings are warranted). At the outset, the Board notes that at no time under consideration is the Veteran's cervical spine disability shown to have required bedrest prescribed by a physician (so as to warrant rating under the alternate criteria for rating IVDS based on incapacitating episodes) or to have had neurological manifestations other than radiculopathy of both upper extremities (so as to warrant additional separate compensable ratings for such neurological manifestations). Considering the rating for the Veteran's cervical spine disability prior to February 29, 2016, there is sparse evidence (limited to what is shown in STRs and on August 2014 VA examination) regarding the status of the disability prior to that date. The STRs show minimal to mild arthritis with painful motion, consistent with the 10 percent rating that has been assigned. The August 2014 VA examination found forward flexion to 40 degrees and combined range of cervical spine motion greater than 170 degrees (but less than 335 degrees), also consistent with the 10 percent rating assigned. There was no localized tenderness, muscle spasm, or guarding (that would meet alternate schedular criteria for the nest higher (20 percent) rating). Accordingly, a rating in excess of 10 percent was not warranted. On February 29, 2016 VA examination forward flexion of the cervical spine was limited to 30 degrees. Under the General Formula, such limitation warrants a 20 percent rating. Limitation of forward flexion to 15 degrees or less is not shown (nor was the spine ever found to be ankylosed). Consequently; further increase in the rating (to 30 percent) is not warranted. While an April 2016 private examination found forward flexion to 40 degrees (and combined range of motion of the cervical spine greater than 170 degrees) with no localized tenderness, guarding, or muscle spasm the Veteran reported he had flare-ups and the provider estimated that during a flare-up forward flexion would be limited to 25 degrees. Accordingly, a 20 percent rating continued to be warranted. See 38 C.F.R. § 4.3. On April 3, 2017 VA examination forward flexion of the cervical spine was found to be to 45 degrees, and combined range of motion exceeded 170 degrees. There was no muscle spasm or guarding. These findings show improvement in the disability (and do not meet the scheduler criteria for a 20 percent rating). Accordingly, from April 3, 2017 a rating in excess of 10 percent is not warranted. The Board has considered whether a separate compensable rating is warranted for the cervical surgical scar, but finds that such rating is not warranted. There is no evidence that the scar is painful, unstable, or causes any limitation of function; and the Veteran has not reported that the scar is painful, unstable, or causes limitation of function (or is disfiguring). See August 2014 VA Examination, and February 2016 VA Examination; 38 C.F.R. § 4.118, Codes 7800, 7804, 7805. ORDER A staged increased (to 20 percent) rating is granted for the Veteran's cervical spine disability for the period from February 29, 2016 to April 3, 2017, subject to the regulations governing payment of monetary awards. Ratings for the cervical spine disability in excess 10 percent prior to February 29, 2016 and from April 3, 2017 are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs