Citation Nr: 18155871 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-45 177 DATE: December 6, 2018 ORDER Entitlement to an increased disability rating (or evaluation) in excess of 10 percent for a cervical strain disability for the rating period from September 4, 2014 is denied. FINDINGS OF FACT 1. For the rating period from September 4, 2014, the Veteran’s cervical strain disability has been manifested by forward flexion of 45 degrees, a combined range of motion of the cervical spine of 315 degrees, localized tenderness not resulting in abnormal gait or abnormal spinal contour, and guarding tenderness not resulting in abnormal gait or abnormal spinal contour. 2. For the rating period from September 4, 2014, the cervical strain disability has not manifested forward flexion of the lumbar spine of 60 degrees or less, 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. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 10 percent for the cervical strain disability have not been met or more nearly approximated for any part of the increased rating period from September 4, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 2010 to October 2013. This matter is on appeal from a March 2016 rating decision issued by the Regional Office (RO) in St. Petersburg, Florida. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326. The duties to notify and assist have been met. Disability Rating Legal Authority The Veteran is in receipt of a 10 percent disability rating for the service-connected cervical strain disability under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran filed a claim for an increased rating for the cervical strain disability in September 2015. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome 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. Ratings under the General Rating Formula are made 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. Under the General Rating Formula, a 10 percent disability rating is assigned 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; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; 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 disability rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 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. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. 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. Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Throughout the course of this appeal, the Veteran has contended that the cervical strain disability has been manifested by more severe symptoms than contemplated by the 10 percent disability rating. See October 2016 Substantive Appeal. As discussed below, for the rating period from September 4, 2014, the Board finds that the criteria for an increased disability rating in excess of 10 percent for the cervical strain disability has not been met or more nearly approximated. In the January 2015 VA examination, the Veteran reported that he continued to experience neck pain, originating from an in-service motor vehicle accident, which worsened with exercise. The VA examiner measured the range of motion in the Veteran’s cervical spine, measuring forward flexion of 45 degrees and a combined range of motion of 315 degrees. The VA examiner noted that the Veteran did not have localized tenderness, guarding, or muscle spasm. Moreover, the VA examiner noted that there was no ankylosis of the spine. In the February 2016 VA examination, the Veteran reported continued neck pain that was exacerbated with rotation of the head to the right, for which he took medication for pain relief. The VA examiner measured the range of motion in the Veteran’s cervical spine, measuring forward flexion of 45 degrees and a combined range of motion of 315 degrees. These measurements are identical to the measurements noted in the January 2015 VA examination. The VA examiner noted that, while the Veteran did not have muscle spasm or ankylosis of the spine, there was localized tenderness and guarding, both of which did not result in abnormal gait or abnormal spinal contour. After a review of all the evidence, for the increased rating period from September 4, 2014, the Board finds that the criteria for an increased disability rating in excess of 10 percent for the cervical strain disability have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. For the rating period from September 4, 2014, the cervical strain disability has been manifested by symptoms of painful motion, forward flexion of 45 degrees, and a combined range of motion of 315 degrees. A rating in excess of 10 percent (20 percent) under the General Rating Formula for Diseases and Injuries of the Spine would require forward flexion of the cervical spine to 30 degrees or less, a combined range of motion of the lumbar spine not greater than 170, or muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour. The Board finds that, even with consideration of the localized tenderness and guarding noted on the February 2016 VA examination, both of which did not result in abnormal gait ot abnormal spinal contour, (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), an increased disability rating in excess of 10 percent for the cervical strain disability is not warranted for any part of the rating period from September 4, 2014. In the February 2016 VA examination, the VA examiner noted that there was no pain with weight bearing and no loss of function or range of motion after repetitive use. For the entire rating period on appeal from September 4, 2014, the cervical strain disability has not manifested by forward flexion of the cervical spine 30 degrees or less, a 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, to warrant a higher rating of 20 percent under the General Rating Formula. For the foregoing reasons, the Board finds the weight of the evidence demonstrates that an increased rating for the cervical strain disability in excess of 10 percent is not warranted for any period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel