Citation Nr: 18154785 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 10-42 748 DATE: November 30, 2018 ORDER Entitlement to a rating in excess of 20 percent for cervical spine degenerative disc disease (DDD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s cervical spine DDD was manifested by, at worst, flexion to 45 degrees with pain, weakness, stiffness, fatigue, and lack of endurance, and flare-ups of varying frequency and severity; but without ankylosis of the cervical or entire spine, or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least four weeks over the previous 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for cervical DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, DC 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1956 to August 1973. The Veteran died in March 2014, prior to the Board’s adjudication of his appeal. In May 2014, VA received a request for substitution of the appellant with respect to the claims pending at the time of the Veteran’s death. In September 2014, the agency of original jurisdiction (AOJ) granted the appellant’s request for substitution. The appellant is the Veteran’s surviving spouse. As the substituted claimant, the appellant may proceed in furtherance of the identified claims that were still pending at the time of the Veteran’s death, and has the same rights to submit additional evidence as did the Veteran. In a May 2016 remand, the Board noted that from 2005 through 2009, the AOJ issued rating decisions on entitlement to an effective date earlier than January 12, 2004 for the grant of service connection for right upper extremity radiculopathy; entitlement to service connection for diabetes mellitus type II; entitlement to an increased evaluation for bilateral hearing loss, left and right upper extremity radiculopathy, and low back strain; and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran submitted timely notices of disagreement disagreeing with the AOJ’s decisions. However, the AOJ did not issue Statements of the Case. The Board remanded the claims. Pursuant to the Board’s remand, in August 2018, the AOJ issued Statements of the Case on the issues noted above. However, the appellant did not submit Substantive Appeals (VA Form 9); thus, the issues are not on appeal. In December 2016, the appellant testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The VLJ who held the hearing is no longer employed by the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (2074). In an October 22, 2018 letter, the Board notified the appellant that the VLJ was no longer employed by the Board and that she had the right to another hearing. See 38 C.F.R. § 20.717. The letter informed the appellant that if no response was received within 30 days of the date of the letter, it would be presumed that she did not desire another hearing. To date, VA has not received a response. Entitlement to a rating in excess of 20 percent for cervical spine disability Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s cervical spine disability is rated under 38 C.F.R. § 4.71a, 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula). Spine disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. Under the General Formula, 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 of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. Id. There is no equivalent rating under the IVDS Formula. Under the General Formula, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Formula, Note 1. 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. Id. at Note 2. The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined ROM of the cervical spine being 340 degrees. Id. Unfavorable ankylosis is a condition in which the entire cervical spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one of 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Analysis The appellant contends that the Veteran’s cervical spine disability is more severe than the rating depicts. In September 2009, the Veteran was afforded a VA examination to determine the severity of his cervical spine disability. The Veteran stated that since he stopped playing golf one and a half years ago, his neck complaints subsided, and he really had no cervical spine complaints. He stated that his neck had been feeling good. The Veteran was not taking medications for his cervical spine disability. The examiner diagnosed the Veteran with DDD, cervical spine with degenerative changes and notable narrowing. The Veteran’s forward flexion was from zero to 45 degrees fast without distress; extension was from zero to 55 degrees fast without distress; lateral flexion was from zero to 30 degrees with no pain; and rotation from zero to 70 degrees with no pain. There was no tenderness and muscle tightness. The Veteran had normal musculature, contour, and muscle strength. Repetitive head rotations did not decrease its ROM or function. All deep tendon reflexes in all extremities were normal. Sensation, motor function as well as balance, gait, coordination, and strength in all extremities were normal. The Veteran had a strong handgrip in both hands. Lasegue was negative. He had no incapacitating episodes and was retired. In March 2010, the Veteran was afforded another VA examination to determine the severity of his cervical spine disability. The Veteran stated that his pain began in June 1966 when an eight-gallon metal thermos bottle fell 11 feet onto his head. The Veteran noted pain that travelled up to both sides of his neck. He further stated that since onset, the symptoms had gotten worse and occurred daily. The examiner confirmed the Veteran’s DDD, cervical spine, with degenerative changes, nerve root narrowing, and IVDS of the lumbar spine, bilateral median nerve. However, the Veteran did not have any incapacitating episodes during the last 12 months due to his IVDS. The Veteran stated that he suffered severe stiffness in his neck. The stiffness occurred daily. He also stated that due to his condition, he suffered severe weakness in both arms. The weakness occurred daily, lasted all day, but was not constant. To help relieve the pain, the Veteran took Advil one to four times a day. He experienced flare-ups. He had shooting pains into the back of his neck and grinding in his neck. The flare-ups were severe, lasted for hours, and occurred daily. They occurred when he turned his head quickly or in the wrong way. The flare-ups had a moderate impact on the Veteran’s daily activities. The Veteran was able walk for 20 minutes up to quarter mile. His gait was unsteady, and he reported falling. The Veteran experienced dizziness, numbness, and weakness. There was no history of neoplasms. The Veteran did not have surgery or been hospitalized for his disability. Upon examination, the Veteran’s gait, posture and inspection of position of the head, curvature of the spine, symmetry in appearance, and symmetry and rhythm of spinal motion were all normal. Forward flexion was from zero to 45 degrees; extension was from zero to 25 degrees; left and right lateral flexion was from zero to 15 degrees; right and left lateral rotation was to 40 and 60 degrees, respectively. The Veteran experienced pain, painful motion, fatigue, weakness, tenderness, guarding of movement, and lack of endurance. However, he did not experience incoordination, spasms, effusion, instability, redness, heat, scars, or abnormal movement. After repetition, forward flexion was from zero to 45; extension was from zero to 25; left lateral flexion was to 10 degrees, right lateral flexion was to 15 degrees; right and left lateral rotation was to 30 and 50 degrees, respectively. The Veteran did not experience any loss in ROM for forward flexion, extension, and right lateral flexion. After final ROM, the Veteran experienced pain, fatigue, weakness, and lack of endurance, but no incoordination. ROM was most limited in the Veteran’s right and left lateral rotations. The Veteran did not experience vertebral fractures. He also experienced motor and sensory impairment. His reflex exam was normal. The Veteran’s disability had a moderate impact on his usual occupation and daily activities. The Veteran’s post-service treatment records note complaints and treatments for neck pain. In July 2010, the Veteran complained of chronic neck pain with occasional loss of balance. He also complained of limited ROM in his neck. Based on the evidence of record, the Board finds that a disability rating in excess of 20 percent is not warranted. DC 5242 provides ratings in excess of 20 percent where there is limitation of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. The Board notes that the Veteran’s flexion was, at worst, 45 degrees with functional loss considered. There was no evidence of ankylosis. In evaluating the Veteran’s level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45, 4.59. The medical evidence shows that the Veteran has, at different times, complained of pain, limitation of motion, flare-ups, weakness, stiffness, and fatigue, which the Veteran is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the March 2010 VA examiner acknowledged these factors, and still found that the Veteran had some ROM despite these additional factors. The medical evidence of record shows that, even when considering these additional factors, they do not result in further functional loss to effectively result in ankylosis of the cervical spine or other significant functional loss not contemplated by the rating schedule. As such, the Board finds that the Veteran’s statements concerning further limitation due to factors such as weakness and fatigue are outweighed by the examiners’ objective findings. 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran’s bilateral upper extremity radiculitis has already been granted, and therefore, are already contemplated by their assigned ratings. No other neurologic abnormalities have been noted as being associated with the Veteran’s cervical spine disability. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As noted, the Veteran has been diagnosed with IVDS. 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. However, there is no medical evidence of prescribed bed rest from a physician for the Veteran’s cervical spine disability, and there is no evidence that any such incapacitating episodes totaled at least four weeks over the past 12-month period. Id. Considering the lay and medical evidence of record, a rating in excess of 20 percent based on incapacitating episodes is not warranted. Id. The Board notes that the Veteran has a current diagnosis of cervical spine DDD, as confirmed by X-ray imaging. However, the Veteran’s cervical spine DDD is already rated at 20 percent disabling. Therefore, no additional higher or alternative ratings under DC 5003 can be applied. The Board has considered the Veteran and the appellant’s statements regarding the severity of the Veteran’s cervical spine disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 20 percent. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel