Citation Nr: 18144410 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-18 546A DATE: October 24, 2018 ORDER Entitlement to an initial 20 percent rating, but no higher, for lumbar spondylosis for the period prior to January 18, 2018, is granted. Entitlement to an initial rating in excess of 20 percent for lumbar spondylosis since January 18, 2018, is denied. Entitlement to an initial rating in excess of 10 percent for cervical degenerative disc disease for the period prior to December 17, 2014, and in excess of 20 percent since December 17, 2014, is denied. FINDINGS OF FACT 1. For the period prior to January 18, 2018, the Veteran’s service-connected lumbar spondylosis has resulted in, at worst, 60 degrees flexion and 115 degrees combined range of motion, including during repetitive use and flare-ups, with no ankylosis of the thoracolumbar spine, or incapacitating episodes. 2. For the period since January 18, 2018, the Veteran’s service-connected lumbar spondylosis has resulted in, at worst, 45 degrees flexion and 70 degrees combined range of motion, including during repetitive use and flare-ups, with no ankylosis of the thoracolumbar spine, or incapacitating episodes. 3. For the period prior to December 17, 2014, the Veteran’s service-connected cervical spine disability has resulted in, at worst, 45 degrees flexion and 330 degrees combined range of motion, including during repetitive use and flare-ups, with no abnormal spinal contour. 4. For the period since December 17, 2014, the Veteran’s service-connected cervical spine disability has resulted in, at worst, 20 degrees flexion and 135 degrees combined range of motion, including during repetitive use and flare-ups, with no ankylosis of the cervical spine. CONCLUSIONS OF LAW 1. Prior to January 18, 2018, the criteria for an initial rating of 20 percent, but no higher, for lumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5242. 2. Since January 18, 2018, the criteria for a rating in excess of 20 percent for lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5242. 3. Prior to December 17, 2014, the criteria for an initial rating in excess of 10 percent for cervical degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5239. 4. Since December 17, 2014, the criteria for a rating in excess of 20 percent for cervical degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5239. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1974 to January 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal from July 2011 and September 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded these matters in September 2014 and June 2017. They now return for appellate review. In a January 2015 rating decision, the RO awarded a 20 percent rating for the Veteran’s cervical spondylosis, effective December 17, 2014, and recharacterized the disability on appeal as cervical degenerative disc disease. In a June 2018 rating decision, the RO awarded a 20 percent rating for the Veteran's lumbar spondylosis, effective January 18, 2018. As higher ratings are still possible throughout the appeal period, these claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). General Rating Formula for Disease and Injuries of the Spine Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine for DCs 5235 to 5243, unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine is greater than 30 degrees but no greater than 40 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or when the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or where there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when 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 the combined range of motion of the thoracolumbar spine not greater than 120 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. Id. A 30 percent rating is warranted when forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. There are also several relevant note provisions associated with Diagnostic Code 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, 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. 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 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 thoracolumbar spine is 240 degrees, and the normal combined range of motion for the cervical spine is 340 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis for the period prior to January 18, 2018 2. Entitlement to a rating in excess of 20 percent since January 18, 2018 for lumbar spondylosis. The Veteran had a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for his service-connected lumbar spine disability from December 17, 2009, to January 17, 2018, and then was awarded a 20 percent rating from January 18, 2018, forward. The Veteran underwent a VA examination in December 2014. He reported constant lower back pain described as sharp, sometimes achy with some spasms. He described his pain on most days as being at an intensity of an eight or nine on a scale of zero to 10. He reported his back brace, pain medications, and steroid injections provide relief. He noted that activities worsen his symptoms. He also reported the pain radiates into his legs. Sleep disturbance due to pain was documented. Numbness and tingling in the right leg and right hand were reported. The examiner noted flare-ups of pain and spasms that occurred with a frequency of 60 times per year with a duration of three days. The flare-ups were noted to severely limit the Veteran. On examination, initial range of motion showed forward flexion was 0 to 80 degrees with painful motion; extension 0 to 20 degrees with painful motion; right lateral flexion was 0 to 20 degrees with painful motion; left lateral flexion 0 to 30 degrees or greater with painful motion; right lateral rotation was from 0 to 25 degrees with painful motion; and left lateral rotation was from 0 to 30 degrees or greater with painful motion. The Veteran exhibited additional limitation in ROM of his back following repetitive-use testing. Range of motion after repetitive-use testing showed forward flexion was 0 to 70 degrees; extension 0 to 20 degrees; right lateral flexion was 0 to 15 degrees; left lateral flexion 0 to 20; right lateral rotation was from 0 to 15 degrees; and left lateral rotation was from 0 to 20. Functional impairment was found to include less movement than normal and pain on movement. Additional limitation due to pain during flare-ups or when the joint is used repeatedly over a period of time was estimated as follows: Forward flexion would be limited due to pain by an additional 10 degrees, right lateral flexion by 5 degrees, left lateral flexion by 10 degrees, right lateral rotation by 10 degrees, and left lateral rotation by 10 degrees. Tenderness to palpation was documented. No muscle atrophy was found. Reflexes were normal. The Veteran exhibited decreased sensation of his feet and toes. Straight leg raising test was positive. Severe radiculopathy was documented. Intervertebral disc syndrome and incapacitating episodes were not found. It was noted that the Veteran regularly used a brace. Imaging showed arthritis of the back. The Veteran’s most recent examination was in January 2018. Initial range of motion showed forward flexion was 0 to 45 degrees; extension 0 to 10 degrees; right lateral flexion was 0 to 5 degrees; left lateral flexion 0 to 5 degrees; right lateral rotation was from 0 to 5 degrees; and left lateral rotation was from 0 to 5 degrees. Pain was noted on examination but did not result in functional loss. Evidence of pain with weightbearing was observed. The Veteran could perform repetitive-use testing, but no additional loss of function or range of motion was observed. The Veteran was not observed after repetitive use over time or during a flare-up. The examiner was unable to say without resorting to speculation on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up because the Veteran was not being directly observed during repetitive use over time or during a flare-up. Guarding and muscle spasms were not observed. No additional factors contributing to the Veteran’s disability were found. Muscle strength testing was normal. No muscle atrophy was found. Sensation testing was normal. Straight leg raising test for the right side was positive. Radiculopathy was found. Ankylosis was not found. No other neurologic abnormalities were found. Intervertebral disc syndrome or bed rest was not found. It was noted the Veteran occasionally used a brace and cane as assistive devices. Diagnostic testing showed arthritis of the back. No thoracic vertebral fracture was found. No other significant diagnostic findings were noted. Passive range of motion was not performed because the examiner determined it was not feasible in a safe and reasonable manner. The examiner noted that a non-weight-bearing assessment was not applicable because there was no objective evidence of pain when the spine was in a non-weight-bearing position at rest. The Board finds that for the period prior to January 18, 2018, the manifestations of the Veteran’s back disability more closely approximate the criteria of the 20 percent rating. According to the December 2014 VA examination, after consideration of repetitive-use testing and additional limitation during flare-ups, the Veteran would experience a forward flexion to 60 degrees during flare-ups with repetitive use and have a combined 115 degrees range of motion. This finding places his disability in the 20 percent category of the general rating formula for diseases and injuries of the spine. However, the Board finds that a rating higher than 20 percent is not warranted at any time during the entire appeal period. The Veteran’s flexion is, at worst, 45 degrees, as evidenced on January 2018 examination, and there is no evidence of ankylosis of the thoracolumbar spine. Therefore, a rating in excess of 20 percent is not warranted for a lumbar spine disability at any time during the appeal period. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s back disability is 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 now assigned 20 percent rating and no higher. In this regard, the Board observes the Veteran’s complaints of progressive, daily pain, and functional impairment. However, even when considering the Veteran’s functional impairment upon repetitive use or flare-ups, he did not approximate 30 degrees flexion or ankylosis of the lumbar spine. Furthermore, the medical evidence does not show prescribed bed rest by a physician due to intervertebral disc syndrome. As such, a higher disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. The Board further notes the Rating Schedule instructs that orthopedic and neurologic manifestations of service-connected diseases and injuries of the spine are to be rated separately. The December 2014 and January 2018 examinations both noted neurologic abnormalities in the form of radiculopathy associated with the Veteran’s back condition. However, the Board notes the Veteran is already service-connected for right lower extremity radiculopathy and left lower extremity radiculopathy and has not disagreed with these ratings. In summary, the Board concludes, that prior to January 18, 2018, the Veteran did meet or nearly approximate the criteria for a 20 percent rating for his low back disability, but that a rating in excess of 20 percent is not warranted for the entire appeal period. As such, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b) has been considered. See generally Gilbert, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disc disease for the period prior to December 17, 2014, and in excess of 20 percent since December 17, 2014 The Veteran had a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5239 for his service-connected cervical spine disability from December 17, 2009, to December 17, 2014, and then was awarded a 20 percent rating from December 17, 2014, forward. The Veteran underwent a VA examination in January 2011. Range of motion of the cervical spine showed flexion to 45 degrees with pain, extension to 45 degrees with pain, right lateral flexion to 45 degrees with pain, left lateral flexion to 45 degrees with pain, right lateral rotation to 70 degrees with pain, and left lateral rotation to 80 degrees with pain. Repetitive use testing revealed no additional limitation of motion. The joint function of his cervical spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The spine had normal head position with symmetry in appearance, and symmetry of spinal motion with normal curves of the spine. Neurological examination of the cervical spine revealed no sensory deficits, motor weakness, or pathologic reflexes. There was no evidence of cervical intervertebral disc syndrome. The Veteran underwent a VA examination in December 2014. The Veteran reported intermittent, localized, dull neck pain that he rated at a six or seven on a scale of zero to 10. He noted his neck pain worsens with activity but is alleviated with medications and heat. He reported sleep disturbance from his neck pain. The Veteran reported severe flare-ups of pain and stiffness that occur 48 times a year and last about a half day. On examination, initial range of motion showed forward flexion was 0 to 30 degrees with painful motion; extension 0 to 30 degrees with painful motion; right lateral flexion was 0 to 20 degrees with painful motion; left lateral flexion 0 to 20 degrees with painful motion; right lateral rotation was from 0 to 40 degrees with painful motion; and left lateral rotation was from 0 to 40 degrees with painful motion. The Veteran exhibited some additional limitation in ROM of his neck following repetitive-use testing. Range of motion after repetitive-use testing showed forward flexion was 0 to 25 degrees; extension 0 to 25 degrees; right lateral flexion was 0 to 20 degrees; left lateral flexion 0 to 20; right lateral rotation was from 0 to 40 degrees; and left lateral rotation was from 0 to 40. Additional functional loss with repetitive-use testing included less movement than normal and pain on movement. It was found that pain significantly limited functional ability during flare-ups or with repeated use over time. The additional ROM loss with flare-ups and repeated use was right forward flexion would be limited by pain by an additional 5 degrees and extension would be limited by pain by an additional 5 degrees. Pain on palpation was noted. No guarding or muscle spasms were found. Muscle atrophy was not found. Intervertebral disc syndrome and incapacitating episodes were not found. Diagnostic testing showed degenerative arthritis. The Veteran’s most recent examination was in January 2018. On examination, initial range of motion showed forward flexion was 0 to 30 degrees; extension 0 to 15 degrees; right lateral flexion was 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation was from 0 to 35 degrees; and left lateral rotation was from 0 to 35 degrees. The examiner noted pain on examination but also found that the pain did not result in any functional loss. Evidence of pain with weightbearing was noted. No localized tenderness or pain on palpation was found. The Veteran could perform repetitive-use testing, but no additional loss of function or range of motion was observed. The Veteran was not observed after repetitive use over time or during a flare-up. The examiner was unable to say without resorting to speculation on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up because the Veteran was not being directly observed during repetitive use over time or during a flare-up. No additional factors contributing to the Veteran’s disability were found. Muscle strength testing was normal. No muscle atrophy was found. Imaging showed degenerative arthritis but no cervical vertebral fractures. Passive range of motion was not performed because the examiner determined it was not feasible in a safe and reasonable manner. The examiner noted that a non-weight-bearing assessment was not applicable because there was no objective evidence of pain when the spine was in a non-weight-bearing position at rest. For the period prior to December 17, 2014, the Veteran’s flexion was, at worst, 45 degrees and 330 degrees combined range of motion, as evidenced on January 2011 examination, and there is no evidence of abnormal spinal contour. Therefore, a rating in excess of 10 percent is not warranted for a cervical spine disability for the period under consideration. For the period since December 17, 2014, the Veteran’s flexion was, at worst, 20 degrees after consideration of repetitive-use testing and additional limitation during flare-ups, as documented on the December 2014 VA examination. His combined range of motion was, at worst, 135 degrees, as documented on the January 2018 VA examination. There was no evidence of ankylosis of the cervical spine. Therefore, a rating in excess of 20 percent is not warranted for a cervical spine disability for the period under consideration. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran’s neck disability 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 his assigned 10 percent rating prior to December 17, 2014 and his assigned 20 percent rating since December 17, 2014. In this regard, the Board observes the Veteran’s complaints of progressive, daily pain, and functional impairment. However, even when considering the Veteran’s functional impairment upon repetitive use or flare-ups, he did not approximate flexion greater than 15 degrees but not greater than 30 degrees, combined range of motion less than 170 degrees, or abnormal spinal contour prior to December 17, 2014. Nor did the Veteran approximate flexion to 15 degrees or less or ankylosis of the cervical spine since December 17, 2014. As previously noted, the Rating Schedule instructs that orthopedic and neurologic manifestations of service-connected diseases and injuries of the spine are to be rated separately. However, the Board notes the Veteran is already service-connected for right upper extremity radiculopathy and left upper extremity radiculopathy and has not disagreed with these ratings. In summary, the Board concludes that a rating greater than 10 percent prior to December 17, 2014, and a rating greater than 20 percent since December 17, 2014 for cervical spine disability are not warranted. As such, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. See generally Gilbert, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Buck Denton