Citation Nr: 18142170 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-23 384 DATE: October 16, 2018 ORDER The claim of entitlement to an increased initial rating for a cervical spine strain with cervical stenosis and spondylosis (hereinafter referred to as a “cervical spine disability”) is denied. FINDING OF FACT The Veteran’s cervical spine disability has symptoms of limited range of motion and painful motion, but does not present symptoms of (or equivalent to) ankylosis, and his forward flexion is greater than 15 degrees. CONCLUSION OF LAW The criteria for entitlement to an increased initial rating for cervical spine strain with cervical stenosis and spondylosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from June 1981 through September 2004. 1. Entitlement to an increased initial rating for cervical spine strain with cervical stenosis and spondylosis The Veteran seeks an increased initial evaluation for his cervical spine disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). Here, the Veteran’s lumbar spine disability is rated under Diagnostic Code 5237 for cervical strain, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The Veteran has been assigned a 20 percent evaluation from March 10, 2015—which is the entire period on appeal. As it pertains to cervical spine conditions, the General Formula (38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243) provides for 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 warranted 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 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. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, 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. The normal ranges of motions 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. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, intervertebral disc syndrome (IVDS) will be evaluated under the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks during the past 12 months; 40 percent is warranted for incapacitating episodes of at least four weeks. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). For purposes of evaluation under Diagnostic Code 5243, an “incapacitating episode” is a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note 1. Here, the Veteran’s cervical spine disability was evaluated in a June 2015 VA examination. The VA examination noted diagnoses of cervical strain, cervical spine stenosis, and cervical spondylosis. The VA examiner (in the addendum opinion ) noted the1983 onset of back problems, and noted reviewing the claims file and performing a physical examination. The examination noted a 2004 date of onset of neck symptoms, with right side neck and shoulder area pain and limited range of motion. The condition was noted to have become worse, with range of motion affecting many activities. The Veteran was noted to use lidocaine patches on a daily basis; the Veteran was recommended for fusion surgery by neurosurgery. The Veteran reported that flare-ups caused difficulty in driving, changing lanes, sleeping, and working. The Veteran’s forward flexion was measured to 30 degrees, with objective evidence of painful motion beginning at 20 degrees; extension to 15, with objective evidence of painful motion beginning at 10 degrees; right lateral flexion to 10 degrees (with pain at 10 degrees); left lateral flexion to 30 degrees, with painful motion beginning at 25 degrees; right lateral rotation at 50 degrees, with painful motion beginning at 45 degrees; left lateral rotation at 50 degrees, with painful motion at 40 degrees. After repetitive use testing, there was no change in range of motion testing. The Veteran’s functional loss or impairment was noted to be less movement than normal and pain on movement, with tenderness in the area of C6 and C7. The tenderness was sufficient to cause guarding or muscle spasm, but not severe enough to result in an abnormal gait or spinal contour. The Veteran had normal muscle strength, normal reflexes, normal sensory findings, no radiculopathy, no neurologic abnormalities, and no intervertebral disc syndrome. He was noted to not require the use of any assistive devices, and the impact of the condition was noted to make it difficult for the Veteran to climb stairs or walk in his present job. Activities of daily living were noted to be affected by tightness in the neck, and he had to turn entire body to address the next person in a meeting. The Board notes that the VA examination of record appears to be thorough, to have considered the Veteran’s history, and to have engaged in a comprehensive review of the medical evidence of records. The Veteran does not contend that the VA examination’s findings were erroneous or inconsistent with his disability picture. The Board affords significant weight to the findings and measurements of the June 2015 VA examination. Applying the General Formula to the findings in the VA examination, from a strict reading the Veteran’s cervical spine forward flexion limited to 30 degrees warrants only 10 percent; the combined range of motion of 185 degrees would also warrant only a 10 percent evaluation. However, the Veteran was appropriately evaluated at 20 percent, given that his pain effectively limits his forward flexion below 30 degrees, and limits his combined range of motion to below 170 degrees. However, the appeal contends a higher evaluation is warranted, but the Board cannot justify a higher evaluation. The Veteran’s cervical spine disability picture is not equivalent to limitation of forward flexion to 15 degrees or less nor does he present symptoms of ankylosis or equivalent thereto. Accordingly, a higher evaluation is not warranted under the General Formula. As noted above, the Veteran’s pain and discomfort was compensated in the rating assigned below. The Veteran’s other reported symptoms related to the reasonably associated impacts from a loss of range of motion of the cervical spine, which is what the General Formula is based on. It is noted that there is no evidence of record that the Veteran has lost significant work as a result of the condition at hand, that he was hospitalized due to the condition, or that he was prescribed bedrest for any period of time. Accordingly, extraschedular consideration under 38 C.F.R. § 3.321 is not warranted, and rating the disability under the formula for IVDS would not result in any additional benefit to the Veteran. The Board has, where possible, considered the higher of the evaluation choice as required by 38 C.F.R. § 4.7, but it appears that the Veteran has been afforded the highest possible evaluation merited by his disability, and a higher evaluation is not warranted. (CONTINUED ON NEXT PAGE) The preponderance of the evidence weighs against a higher rating in this case, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. at 53. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel