Citation Nr: 18153786 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-41 894 DATE: November 29, 2018 ORDER The reduction of the evaluation for a cervical spine disability from 20 percent to 10 percent from April 7, 2014 to September 8, 2015 was improper; restoration of a 20 percent rating from April 7, 2014 is granted. Entitlement to a rating of 30 percent – but no higher – for a cervical spine disability is granted. From October 26, 2017, entitlement to a rating of 40 percent for right upper extremity radiculopathy associated with a cervical spine disability is granted. From October 26, 2017, entitlement to a rating of 30 percent for left upper extremity radiculopathy associated with a cervical spine disability is granted. FINDINGS OF FACT 1. From April 7, 2014 to September 8, 2015, the time of the reduction in rating for a cervical spine disability, the evidence did not show material improvement in the Veteran’s cervical spine disability under the ordinary conditions of life. 2. For the entire appeal period, the Veteran’s cervical spine disability consistently manifested in forward flexion limited to 15 degrees or less; unfavorable ankylosis of the cervical spine is not shown. 3. From October 26, 2017, the Veteran’s radiculopathy of the right upper extremity associated with a cervical spine disability, manifested in moderate incomplete paralysis. 4. From October 26, 2017, the Veteran’s radiculopathy of the left upper extremity associated with a cervical spine disability, manifested in moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The reduction in the evaluation for a cervical spine disability from April 7, 2014 to September 8, 2015 was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Code (DC) 5243. 2. The criteria for a 30 percent rating – but no higher – for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5243. 3. From October 26, 2017, the criteria for a 40 percent rating for radiculopathy of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8510. 4. From October 26, 2017, the criteria for a 30 percent rating for radiculopathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1997 to January 1998 and January 2003 to September 2003. In April 2014, the Veteran filed an increased rating claim for her cervical spine disability. In a January 2015 rating decision, the RO reduced the Veteran’s cervical spine evaluation from 20 percent to 10 percent effective April 7, 2014. The Veteran filed a notice of disagreement in December 2015. A June 2016 rating decision assigned a 20 percent evaluation effective September 8, 2015. A January 2017 rating decision increased the Veteran’s evaluation to 30 percent effective July 26, 2016. The Veteran has not expressed satisfaction with the ratings assigned for either of the periods on appeal; therefore, the issues have been characterized to reflect that “staged” ratings are assigned, and that each stage remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Whether the reduction of the evaluation of a cervical spine disability was improper. When reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In addition, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344. In the present case, the 20 percent rating was in effect from July 5, 2013. Regardless of whether the disability rating has been in effect for at least 5 years, the Board must not only determine “that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. Thus, it is well established that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that the service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. The Veteran submitted a September 2014 cervical spine disability benefits questionnaire (DBQ) completed by a private practitioner. The Veteran reported increased pain and stiffness and indicated she uses a TENS unit twice daily. Regarding flare-ups the Veteran reported stiffness, decrease of mobility, and sharp constant pain. She reported that due to her cervical spine condition, she is unable to exercise and drive sometime due to increased pain. Range of motion testing shows forward flexion to 5 degrees. The Veteran showed guarding and muscle spasm. Additional factors contributing the Veteran’s disability included less movement than normal, weakened movement, and pain on movement. There was no evidence of muscle atrophy but that report indicates that the Veteran had favorable ankylosis of the entire cervical spine. September and October 2014 VA treatment notes indicates the Veteran showed forward flexion for 5 degrees, extension to 27 degrees, right lateral flexion to 8 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees on active range of motion testing. The Veteran showed pain with testing. A December 2014 VA examination was the basis for the reduction of the Veteran’s cervical spine evaluation. The Veteran reported morning stiffness, pain, and decreased mobility. Additionally, she reported taking Diclofenac, receiving steroid injections, and participating in physical therapy. The Veteran reported flare-ups manifesting in pain radiating into shoulder and decreased movement. Range or motion testing showed forward flexion to 45 degrees or greater, extension to 45 degrees or greater, right lateral flexion to 45 degrees or greater, left lateral flexion to 45 degrees or greater, right lateral rotation to 80 degrees or greater, and left latera rotation to 80 degrees or greater. There was no objective evidence of painful motion. The Veteran could perform repetitive-use testing with no additional limitation of range of motion. Guarding or muscle spasm was present but did not result in abnormal gait or spinal contour. The Veteran had full muscle strength. Reflex and sensory examinations were normal. The Veteran had IVDS but did not have any incapacitating episodes in the prior 12 months. Regarding functional impact, the examiner noted that the Veteran’s cervical spine condition causes limitation in excessive turning of the head, reaching above the head, and heavy lifting. In a September 2015 letter, private practitioner Dr. A.M.H. indicated that the Veteran has been treated for a neck disorder and her x-rays showed degenerative disc disease. Dr. A.M.H. further indicated that the Veteran’s range of motion has been noted to be less than 30 degrees on forward flexion and she complains of daily neck pain and stiffness with pain radiating down the right arm. She was prescribed a neck brace. Based on the medical records, the most probative evidence does not show an improvement in the Veteran’s ability to function under the ordinary conditions of life and work due to his cervical spine disability. Although the December 2014 VA examination report suggests improvement to the Veteran’s condition, the Veteran’s 2014 VA treatment records indicate the Veteran consistently experienced severe limitation of motion and stiffness. In sum, the preponderance of the evidence does not indicate that an improvement in the Veteran’s cervical spine disability has occurred and that the improvement reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. Thus, the reduction was improper and restoration is required. 2. Entitlement to an increased rating for a cervical spine disability. The Board now turns to whether the Veteran is entitlement to an increased rating for her cervical spine disability. The Veteran’s cervical spine disability is rated under DC 5243. Under DC 5243, cervical spine disabilities can be rated under the General Rating Formula or under the Formula for Rating IVDS. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, 5243. The General Rating Formula for Diseases and Injuries of the Spine provides that, 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 following ratings will apply. Under Diagnostic Code 5243, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; localized tenderness not resulting in abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of its height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The criteria also include the following provisions: 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): 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. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints 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 opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. The Veteran asserts that her cervical spine disability is more disabling than reflected in her current (restored) 20 percent rating prior to July 26, 2016 and in excess of 30 percent thereafter. The Board finds that for the entire appeal the Veteran’s cervical spine symptoms more nearly approximate the criteria for a 30 percent rating – but no higher. The Veteran submitted a September 2014 cervical spine disability benefits questionnaire (DBQ) completed by a private practitioner. The DBQ indicated the Veteran showed chronic cervical spine findings of C3-C4 since September 2009. She had a neurosurgery consult but opted not to surgery. She did physical therapy in 2013 with no change. She consulted a chiropractor in 2014 and reported experiencing pain during and after visits. She reported increased pain and stiffness and indicated she uses a TENS unit twice daily. Regarding flare-ups the Veteran reported stiffness, decrease of mobility, and sharp constant pain. She reported that due to her cervical spine condition, she is unable to exercise and drive sometime due to increased pain. Range of motion testing shows forward flexion to 5 degrees, extension to 30 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Combined range of motion was 95 degrees. The Veteran was unable to perform repetitive-use testing due to pain. The Veteran showed tenderness of the supraspinous ligament and the bilateral upper trapezius muscles. The Veteran showed guarding and muscle spasm. Additional factors contributing the Veteran’s disability included less movement than normal, weakened movement, and pain on movement. There was no evidence of muscle atrophy but that report indicates that the Veteran had favorable ankylosis of the entire cervical spine. Reflex and sensory examinations were normal. The Veteran did not have any symptoms of radiculopathy. The Veteran had IVDS but did not have incapacitating episodes over the previous 12 months. Imaging studies shows a diagnosis of arthritis. The medical service provider indicated that the Veteran was unable to perform any physical work or exercise that requires repetitive and long periods of head movement. An October 2014 VA treatment note indicates the Veteran showed forward flexion for 5 degrees, extension to 27 degrees, right lateral flexion to 8 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees on active range of motion testing. The Veteran showed pain with testing. The medical service provider noted that the Veteran continued to report elevated pain. He noted that the Veteran showed an inconsistent presentation of range of motion during treatment and since her initial evaluation. He noted that the Veteran reported occasional symptoms into the upper extremity but no clear radicular pathology was found. See also September 2014 VA Treatment Note. The Veteran underwent a VA examination in December 2014. The Veteran reported an onset of symptoms in 2003. She reported that her condition has worsened since onset. She reported morning stiffness, pain, and decreased mobility. She reported occasional radiation of pain into the right shoulder and hand with numbness. Additionally, she reported taking Diclofenac, receiving steroid injections, and participating in physical therapy. The Veteran reported flare-ups manifesting in pain radiating into shoulder and decreased movement. Range or motion testing showed forward flexion to 45 degrees or greater, extension to 45 degrees or greater, right lateral flexion to 45 degrees or greater, left lateral flexion to 45 degrees or greater, right lateral rotation to 80 degrees or greater, and left latera rotation to 80 degrees or greater. There was no objective evidence of painful motion. The Veteran could perform repetitive-use testing with no additional limitation of range of motion. Guarding or muscle spasm was present but did not result in abnormal gait or spinal contour. The Veteran had full muscle strength. Reflex and sensory examinations were normal. The Veteran showed full muscle strength. The Veteran showed radicular pain or other symptoms of radiculopathy. He showed mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. His left upper extremity was negative for radiculopathy symptoms. The Veteran had IVDS but did not have any incapacitating episodes in the prior 12 months. Regarding functional impact, the examiner noted that the Veteran’s cervical spine condition causes limitation in excessive turning of the head, reaching above the head, and heavy lifting. Although the examiner noted that there were no other pertinent physical findings or complications regarding the Veteran’s cervical spine disability, there was no discussion of whether ankylosis was present. In a September 2015 letter, private practitioner Dr. A.M.H. indicated that the Veteran has been treated for a neck disorder and her x-rays showed degenerative disc disease. Dr. A.M.H. further indicated that the Veteran’s range of motion has been noted to be less than 30 degrees on forward flexion and she complains of daily neck pain and stiffness with pain radiating down the right arm. She was prescribed a neck brace. In a July 2016 letter, Dr. A.M.H. indicated that the Veteran’ cervical range of motion is severely limited in all planes with forward flexion to be less than 15 degrees. Dr. A.M.H. indicated that she has been treated with various modalities including ice packs, anti inflammatories, and a neck brace. The Veteran uses a TENS unit daily at work twice a day for 10 minutes. The Veteran also submitted an October 2017 DBQ completed by Dr. A.M.H. The Veteran indicated that flare-ups manifested in stiffness and pain. The Veteran reported pain on movement. She further indicated that prolonged sitting or standing aggravates here condition. Range of motion testing showed forward flexion to 0, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 20 degrees. The Veteran could not complete repetitive use testing due to pain. The Veteran showed normal gait and spinal contour. Additional factors contributing to the Veteran’s disability included less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, interference with sitting, interference with standing, and numbness. There was no muscle atrophy or ankylosis shown. The Veteran’s sensory examination was normal. The Veteran showed severe pain due to radiculopathy of the bilateral upper extremities. There was no evidence of paresthesias or dysesthesias. The medical service provider marked the box indicating the Veteran experienced both moderate and severe numbness in the bilateral upper extremities. Based on the evidence, the Board finds that for the entire appeal period, the Veteran’s cervical spine symptoms more nearly approximate the criteria for a 30 percent rating. The Veterans VA treatment records from 2014 show the Veteran was consistently participating in physical therapy and showing forward flexion limited to 5 degrees. The September 2014 and October 2017 DBQs of record also show forward flexion limited to 5 degrees. Although the December 2014 VA examination report indicates the Veteran had full cervical range of motion, the preponderance of the evidence shows the Veteran’s cervical spine disability consistently manifested in pain, stiffness, and limited mobility. As such, a rating of 30 percent for the entire appeal period is warranted. The Board has also considered whether a rating in excess of 30 percent is warranted. However, the evidence is silent for unfavorable ankylosis of the entire cervical spine. Thus, a 40 percent rating is not warranted. Finally, the Board has also considered whether an increased rating is warranted for the complications of the Veteran’s cervical spine disability. The Veteran is assigned separate 20 percent evaluations for radiculopathy of the right and left upper extremities associated with her cervical spine disability. The Veteran’s radiculopathy of the bilateral upper extremities is rated pursuant to 8510, which provides ratings for major and minor extremities. The record indicates the Veteran is right hand dominant. Under DC 8510, the following ratings apply: a 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremities; 30 percent and 40 percent ratings are warranted for moderate incomplete paralysis of the minor and major extremity, respectively; 40 percent and 50 percent ratings are warranted for severe incomplete paralysis of the minor and major extremity, respectively; and 60 percent and 70 percent ratings are warranted for complete paralysis of the minor and major extremity, respectively, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected. 38 C.F.R. § 4.124a, DC 8510. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The terms “mild,” “moderate” and “severe” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran is currently assigned separate 20 percent ratings for radiculopathy of the left and right upper extremities. The Board finds that from October 26, 2017, the Veteran’s radiculopathy symptoms manifest in moderate incomplete paralysis. On the October 2017 DBQ, Dr. A.M.H. checked the boxes indicating that the Veteran experiences both moderate and severe numbness. However, the Veteran’s sensory examination was normal and the examination was negative for paresthesias and dysesthesias. Thus, the Board finds the Veteran’s symptoms collectively show moderate incomplete paralysis and more nearly approximate the criteria for 40 percent and 30 percent ratings for radiculopathy of the right and left extremities respectively. The Board has considered whether an increased rating for radiculopathy is warranted prior to October 26, 2017. However, that is the earliest date upon which it is factually ascertainable that the Veteran showed worsening radiculopathy symptoms. In sum, a 40 percent rating for radiculopathy of the right upper extremity is warranted from October 26, 2017, and a 30 percent rating for radiculopathy of the left upper extremity is warranted from October 26, 2017. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel