Citation Nr: 18151461 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-27 539 DATE: November 20, 2018 ORDER A rating in excess of 10 percent for degenerative arthritis of the cervical spine is denied prior to May 21, 2015. REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine since May 21, 2015 is remanded. FINDING OF FACT Prior to May 21, 2015, the degenerative arthritis of the Veteran’s cervical spine was manifested by pain, but without muscle spasm or guarding productive of abnormal spinal contour; the combined range of motion of the cervical spine was greater than 170 degrees, with forward flexion greater than 30 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the cervical spine have not been met for the rating period prior to May 21, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235 to 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1976 to February 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine prior to May 21, 2015. The Veteran has been assigned a 10 percent disability rating for the degenerative arthritis of his cervical spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003- 5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, 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. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned 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 spinal contour, or vertebral facture 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 evaluation is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. In the present case, the Board finds that the weight of the evidence demonstrates that the degenerative arthritis of the Veteran’s cervical spine most closely approximates the criteria for the currently assigned 10 percent rating for the period prior to May 21, 2015. During a February 2012 VA evaluation, the Veteran had flexion to 45 degrees, extension to 45 degrees, lateral rotation to 45 degrees on each side, and lateral flexion to 45 degrees on each side. VA treatment records reflect that the Veteran had forward flexion to 45 degrees in October 2012, with extension to 10 degrees, lateral rotation to 35 degrees per side, and lateral flexion to 40 degrees on the right and 30 degrees on the left. Applying the facts to the criteria set forth above, the Veteran is entitled a 10 percent disability evaluation, but no more, for the period prior to May 21, 2015. As noted, at his 2012 VA examination, and according to VA treatment records dated through May 21, 2015, the Veteran’s range of motion did not meet the criteria for a 20 percent rating. The combined range of motion of the cervical spine was greater than 170 degrees, with forward flexion greater than 30 degrees. The findings of the February 2012 VA examination report are consistent with the Veteran’s VA treatment records. The Veteran’s available VA treatment records, dated through May 21, 2015, show that the Veteran repeatedly reported that his cervical spine symptoms were unchanged. On examination in February 2012, there was no tenderness to palpation or pain on motion, and there was no evidence of fatigability, weakness, or spasm. Nor was there any evidence of guarding productive of abnormal spinal contour. In addition, the Veteran’s degenerative arthritis of the cervical spine is not shown to have been productive of incapacitating episodes prior to May 21, 2015. The Veteran has not reported, and the evidence does not demonstrate, that he experienced incapacitating episodes requiring bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that there is also no objective evidence of record which demonstrates that the Veteran experienced any neurologic symptomatology of the right or left upper extremities associated with the cervical spine prior to May 21, 2015. In light of the foregoing, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to May 21, 2015. To this extent, the appeal is denied. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine since May 21, 2015 is remanded. The Veteran has received treatment for his cervical spine at a VA Medical Center, and treatment records from February 2012 through May 2015 are of record. Because more recent records of treatment could bear on the matter of his entitlement to a rating in excess of 10 percent on or after May 21, 2015, efforts must be made to procure them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As noted, the Veteran was most recently afforded a VA examination of his cervical spine in February 2012. In light of the fact that his condition is degenerative in nature, the Board finds that he should be afforded a new VA examination for purposes of assessing the current severity of his disorder. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his cervical spine. The examiner should provide a full description of all manifestations relevant to rating the Veteran’s disability under the relevant criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the matter of the Veteran’s entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine since May 21, 2015 should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel