Citation Nr: 18141241 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-26 543 DATE: October 10, 2018 ORDER An effective date prior to September 7, 2012, for the award of a 20 percent rating for degenerative joint disease of the cervical spine is denied. FINDING OF FACT It is not factually ascertainable that the Veteran’s degenerative joint disease of the cervical spine resulted in forward flexion less than 30 degrees or combined range of motion less than 170 degrees, even in consideration of even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; intervertebral disc syndrome (IVDS) with incapacitating episodes; or associated objective neurologic abnormalities prior to September 7, 2012. CONCLUSION OF LAW The criteria for an effective date prior to September 7, 2012, for the award of a 20 percent rating for degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to September 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2013 by a Department of Veterans Affairs (VA) Regional Office. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to an effective date prior to September 7, 2012, for the award of a 20 percent rating for degenerative joint disease of the cervical spine. In the instant case, VA received the Veteran’s claim for an increased rating for his cervical spine disability on June 11, 2009. In an October 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied a rating in excess of 10 percent for such disability. Thereafter, the Veteran appealed such decision and, during the course of the appeal, a February 2013 rating decision awarded a 20 percent rating for his cervical spine disability, effective September 7, 2012. In an April 2013 statement, the Veteran expressed satisfaction with the assignment of a 20 percent rating for such disability, but thereafter perfected an appeal as to the propriety of the assigned effective date for such award. In this regard, he argues that the assignment of the 20 percent rating for his cervical spine disability should be effective June 11, 2009, the date VA received his increased rating claim. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increase compensation “will be the date of receipt of the claim or the date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. This claim is subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.” 38 C.F.R. § 3.400(o)(2). The United States Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. Therefore, the inquiry before the Board is whether there was a factually ascertainable increase in the severity of the Veteran’s degenerative joint disease of the cervical spine prior to September 7, 2012, thus warranting the award of a 20 percent rating at an earlier date. In this regard, disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating 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 rating 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. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 10 percent rating is warranted where there are 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 warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. From June 11, 2009, the date of the receipt of the Veteran’s increased rating claim, to September 7, 2012, his service-connected neck disability is rated as 10 percent disabling under Diagnostic Code 5290-5010 for degenerative arthritis with limitation of cervical spine motion, which was subsequently converted to Diagnostic Code 5242 for degenerative arthritis of the spine. To receive a higher disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must demonstrate forward flexion greater than 15 degrees but less than 30 degrees, a 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. Upon review, the Board finds such criteria are not met during the period on appeal. Concerning limitation of motion for rating purposes, the evidence does not reflect forward flexion less than 30 degrees or a combined range of motion not greater than 170 degrees. In April 2009, the Veteran reported worsening, moderate pain that was at time dull, sharp, and shooting; however, he had normal range of motion. A May 2009 treatment record indicates the Veteran had only “some limited range of motion” when he tilted his head to the right and left and, in June 2009, active forward flexion and right rotation did not result in pain, although other movements were painful at the end of motion. On VA examination in August 2009, the Veteran had diffused, deep, and intermittent pain, which he reported was only moderate in severity most of the time. Range of motion was normal, as flexion, extension, left lateral flexion, and right lateral flexion were to 45 degrees, and left lateral and right lateral rotation were to 80 degrees. Although the Veteran had pain with range of motion, and repetition produced increased pain, weakness, lack of endurance, and fatigue, there was no resulting additional loss of range of motion due to these factors. In addition, the evidence, to include the August 2009 VA examination report, does not show the Veteran had an abnormal gait or abnormal spinal contour prior to September 7, 2012. Further, the evidence does not reflect, and the Veteran has not asserted, that he has experienced incapacitating episodes due to IVDS because of his neck disability. In August 2009, he reported experiencing flare-ups multiple times a day and that rest and medication relieved pain; however, he had no corresponding incapacitating episodes, to include bed rest prescribed by a physician, or additional functional limitation. Therefore, a 20 percent rating is not assignable under the IVDS Rating Formula. 38 C.F.R. § 4.71a. Further, prior to September 7, 2012, the evidence fails to show associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, Note (1). The Board notes the Veteran’s assertions that the June 2009 VA examination was inadequate as the examiner did not use a goniometer to measure range of motion. However, the record demonstrates the VA examiner reviewed the pertinent evidence and the Veteran’s lay statements regarding his symptoms, with particular consideration of his statements concerning additional loss of range of motion and functional impairment. The examination also provided sufficient information to rate the service-connected disability on appeal as such does indeed contain specific range of motion measurements in degrees. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). In addition, the Board has considered the entirety of the evidence dated during the appeal period and finds the VA examiner’s report is consistent with such. As such, the Board finds the examination to be sufficient and adequate for rating purposes. With respect to functional impairment, the Veteran reported that his neck disability did not interfere with his ability to work, sleep, or drive a car in May 2009. The August 2009 VA examination report shows the Veteran was working as a shift supervisor graphic packing international. Although he reported that his neck disability had slowed him down with respect to activities of daily living and occupation, he had not lost any working days. Without evidence of greater impairment, the Board finds the Veteran’s reported functional impairment due to his neck disability is contemplated by the 10 percent rating assigned prior to September 7, 2012. In conclusion, the Board finds that it is not factually ascertainable that the Veteran’s degenerative joint disease of the cervical spine resulted in forward flexion less than 30 degrees or combined range of motion less than 170 degrees, even in consideration of even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; IVDS with incapacitating episodes; or associated objective neurologic abnormalities prior to September 7, 2012. Therefore, even in consideration of the Veteran’s subjective reports of pain and limited motion and corresponding functional impairment, the Board finds the criteria for a rating of 20 percent have not been met at any time prior to September 7, 2012. In making its determination in this case, the Board acknowledges the Veteran’s belief that his cervical spine symptoms either had at least remained the same, if not worsened, from 2009 to 2012, and, therefore, are more severe than the current disability rating assigned for the appeal period. In this respect, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this case, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms as to his disability, and described the manifestations of such disability considering the rating criteria to be more persuasive than his own reports regarding the severity of such condition. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, regarding the instant claim. 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). In conclusion, the Board finds no basis upon which to award an effective date prior to September 7, 2012, for the award of a 20 percent rating for degenerative joint disease of the cervical spine. In making this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the assignment of a higher 20 percent rating prior to such date. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel