Citation Nr: 18149277 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-06 441 DATE: November 9, 2018 ORDER Entitlement to an initial increased rating exceeding 20 percent for service-connected cervical spine pain, post-operative residuals of cervical spine fusion at C4-C5 with surgical scar (“cervical spine disability”), from January 27, 2010 to August 1, 2017, is denied. Entitlement to an initial increased rating of 30 percent, but not higher, for service-connected cervical spine pain, post-operative residuals of cervical spine fusion at C4-C5 with surgical scar (“cervical spine disability”), beginning August 1, 2017, is granted. FINDINGS OF FACT 1. From January 27, 2010 to August 1, 2017, the Veteran’s cervical spine disability has not manifested to a forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. 2. Beginning August 1, 2017, the evidence is in relative equipoise as to whether the Veteran’s cervical spine disability warrants an initial increased rating exceeding 20 percent. 3. Resolving all reasonable doubt in favor of the Veteran, beginning August 1, 2017, the Veteran’s cervical spine disability has manifested to a degree that most closely approximates forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating exceeding 20 percent for the Veteran’s cervical spine disability, from January 27, 2010 to August 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5235-5243. 2. The criteria for an initial increased rating of 30 percent, but not higher, for the Veteran’s cervical spine disability, beginning August 1, 2017, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1999 to March 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2016, the Board remanded the claim for additional development. In May 2017, the Board remanded the claim once again for further development. The Board notes that there was substantial compliance with its May 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to an initial increased rating exceeding 20 percent for service-connected cervical spine pain, post-operative residuals of cervical spine fusion at C4-C5 with surgical scar The Veteran contends that she is entitled to an initial increased rating for her service-connected cervical spine disability. Disability ratings are determined by applying the criteria set forth in the schedule of ratings. 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. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 37–38; see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). The Veteran is currently rated as 20 percent disabled under DC 5237. The DC criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, DC 5235 to 5243. Under these relevant provisions, a 20 percent rating is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine; and a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. For VA purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, DC 5237-5243 Note (2). Throughout the Veteran’s claim, the Veteran has attended numerous VA examinations to assess the nature and severity of her cervical spine disability. After considering this evidence, the Board finds that an initial increased rating exceeding 20 percent is not warranted for the period of January 27, 2010 to August 1, 2017, and an increase of 30 percent, but not higher, is warranted for the Veteran’s cervical spine disability beginning August 1, 2017. From January 27, 2010 to August 1, 2017 In an April 2010 C&P examination, evidence shows that the Veteran complained of neck pain that increased in cold weather, with no current reports of flare-ups. Examination of the cervical spine revealed the Veteran had a forward flexion of 0 to 35 degrees, extension of 0 to 20 degrees with pain to the right side, bilateral lateral flexion of 0 to 75 degrees, and bilateral lateral rotation of 0 to 65 degrees with pain to the right side. There was no localized tenderness to the paraspinal area bilaterally. On repetitive range of motion of the cervical spine, it reflected pain to the right side of the neck, with no limitation of motion, no weakness, no fatigue, no lack of endurance or incoordination. In a September 2012 cervical spine DBQ, evidence showed the Veteran continued to complain of constant neck pain that increases in damp and cold weather, with no current reports of flare-ups. The Veteran’s range of motion showed a forward flexion of 0 to 35 degrees, with objective evidence of painful motion at 35 degrees; extension of 0 to 25 degrees, with objective evidence of pain at 25 degrees; right and left lateral flexion of 0 to 35 degrees, with objective evidence of pain at 35 degrees; and right and left lateral rotation at 0 to 50 degrees, with objective evidence of pain at 50 degrees. There was no functional loss and/or functional impairment of the cervical spine, but the Veteran does have additional limitation of range of motion following repetitive-use testing. There was localized tenderness or pain, but no guarding or muscle spasm; and the Veteran’s cervical spine disability does not affect her ability to work. In a December 2014 cervical spine DBQ, evidence showed continuous complaints of neck pain, with no current reports of flare-ups or functional loss and/or impairment. The Veteran’s range of motion showed a forward flexion of 0 to 30 degrees; extension of 0 to 10 degrees; right lateral flexion of 0 to 25 degrees; left lateral flexion of 0 to 20 degrees; right lateral rotation of 0 to 60 degrees; and left lateral rotation at 0 to 55 degrees. There was no evidence of pain on weight-bearing, and no objective evidence of localized tenderness or pain. The Veteran exhibited significantly limited functional ability with flare-ups regarding pain, weakness, fatigability or incoordination but the examiner was unable to describe in terms of range of motion; and there was guarding and muscle spasms, resulting in abnormal gait or abnormal spinal contour. No evidence of ankylosis, however, the Veteran’s cervical spine disability does affect her ability to work. In an October 2016 cervical spine DBQ, evidence showed the Veteran complained of constant neck pain that was aggravated by weather changes or staying in one position too long. The Veteran reported experiencing flare-ups that occur 5 to 6 times per year and last 1 to 2 days, and reported functional loss and/or impairment. The Veteran’s range of motion showed a forward flexion of 0 to 30 degrees; extension of 0 to 15 degrees; right lateral flexion of 0 to 25 degrees; left lateral flexion of 0 to 25 degrees; right lateral rotation of 0 to 55 degrees; and left lateral rotation at 0 to 55 degrees. Pain was noted on the examination and causes functional loss. There was evidence of pain with weight-bearing, with localized tenderness. The Veteran did not have guarding or muscle spasms, and no ankylosis. Based on the above, the evidence of record does not demonstrate that a rating higher than 20 percent is warranted. The April 2010 C&P examination and the September 2012 DBQ do not specifically reflect information that would even warrant a 20 percent evaluation; however, the December 2014 and October 2016 DBQ’s do reflect the Veteran’s cervical spine disability manifested to a forward flexion greater than 15 degrees but not greater than 30 degrees, or combined range of motion of the cervical spine not greater than 170 degrees, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, the Board finds that a 20 percent evaluation was properly assessed prior to August 1, 2017. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Beginning August 1, 2017 In an August 2017 cervical spine DBQ, evidence showed reports of current pain that resulted in the Veteran missing work 2 to 4 weeks per year during the winter. The Veteran reported no current flare-ups, but reported functional loss and/or impairment. The Veteran’s range of motion showed a forward flexion of 0 to 20 degrees; extension of 0 to 25 degrees; right lateral flexion of 0 to 10 degrees; left lateral flexion of 0 to 10 degrees; right lateral rotation of 0 to 20 degrees; and left lateral rotation at 0 to 20 degrees. Pain was noted on the examination and causes functional loss. There was evidence of pain with weight-bearing, with localized tenderness. The Veteran did have guarding or muscle spasms, resulting in abnormal gait or abnormal spinal contour. No ankylosis; however, the Veteran’s cervical spine disability does significantly affect her ability to work. Shortly after, an addendum to the August 2017 DBQ was completed in August 2017. In that, the examiner noted with respect to Correia v. McDonald, 28 Vet. App. 158 (2016), the Veteran’s bilateral cervical spine joints C3-C8 are impaired with loss of range of motion, weakness, fatigue, and spasm in the associated splenius cervicus, longissimus capitus, semispinalis capitus, spinalis cervicus, semispinalis capitus; as well as loss of range of motion in the right upper extremity musculature. Based on this severity, the examiner noted that an increase is medically warranted. The August 2017 DBQ does not reflect that the Veteran’s cervical spine demonstrated a forward flexion of 15 degrees or less, nor was there any favorable ankylosis of the entire cervical spine to warrant an increase exceeding 20 percent. However, given that there was an obvious, and significant, increase in the loss of range of motion in the August 2017 DBQ, as well as the statements of the examiner in the August 2017 addendum, noting the severity of the Veteran’s cervical spine disability to be at a level that the examiner feels medically would warrant an increased rating, the Board finds that the evidence is in relative equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, an initial increased rating of 30 percent, but not higher, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, a higher rating exceeding 30 percent is not warranted as the competent, credible evidence of record does not indicate that the Veteran’s cervical spine disability has unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel