Citation Nr: 18157568
Decision Date: 12/13/18	Archive Date: 12/12/18

DOCKET NO. 16-53 395A
DATE:	December 13, 2018
ORDER
Entitlement to a rating in excess of 20 percent for chronic orthopedic residuals of cervical laminectomy with facetectomy is denied.
Entitlement to a rating in excess of 40 percent for chronic orthopedic symptoms of degenerative disk disease (DDD), upper lumbar segments, is denied.
Entitlement to an initial rating of 10 percent each for associated right lower extremity (RLE) lumbar radiculopathy is granted for the period from March 18, 2015 to April 30, 2017 is granted.
Entitlement to an initial rating of 10 percent each for associated left lower extremity (LLE) lumbar radiculopathy is granted for the period from March 18, 2015 to April 30, 2017 is granted.
REMANDED
Entitlement to service connection for headaches, including as due to residuals of posterior cervical laminectomy with facetectomy, is remanded.
Entitlement to a separate rating for associated neurological manifestations of residuals of posterior cervical laminectomy with facetectomy is remanded.
Entitlement to an initial rating higher than 10 percent each for associated RLE lumbar radiculopathy for the period May 1, 2017 forward is remanded.
Entitlement to an initial rating higher than 10 percent each for associated LLE lumbar radiculopathy for the period May 1, 2017 forward is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence of record shows that the chronic orthopedic manifestations of the posterior cervical laminectomy with facetectomy have manifested with range of motion (ROM) on forward flexion greater than 0 to 15 degrees with pain.
2. The preponderance of the evidence of record shows that the chronic orthopedic symptoms of the Veteran’s DDD, upper lumbar segments, manifested with restricted ROM and pain. Neither intervertebral disc disease (IVDS) nor incapacitating episodes have been shown.
3. The evidence of record is at least in equipoise as to whether the DDD, upper lumbar segments, manifested with associated bilateral lumbar radiculopathy.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for chronic orthopedic residuals of cervical laminectomy with facetectomy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5299-5241 (2017).
2. The criteria for a rating in excess of 40 percent for chronic orthopedic symptoms of DDD, upper lumbar segments, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, DC 5243.
3. Resolving all doubt in the Veteran’s favor, the criteria for an initial rating not to exceed 10 percent for associated RLE lumbar radiculopathy have been met for the period from March 18, 2015 to April 30, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.10, 4.124a, DC 8520.
4. Resolving all doubt in the Veteran’s favor, the criteria for an initial rating not to exceed 10 percent for associated LLE lumbar radiculopathy have been met for the period from March 18, 2015 to April 30, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.10, 4.124a, DC 8520.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Increased Rating
Legal Requirements
The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. 
If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205.
The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals For Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities.
For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V.
Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). See 38 C.F.R. § 4.71a
1. Increased rating for status post posterior cervical laminectomy with facetectomy.
Rating Criteria
The AOJ evaluated the Veteran’s cervical spine disability analogously to a spinal fusion. See 38 C.F.R. § 4.20; § 4.71a, DC 5241. Regardless of the diagnostic code selected, however, all spine disabilities are rated under the General Formula. For cervical spine disabilities, it 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, ROM on forward flexion greater than 15 degrees but not greater than 30 degrees warrants a 20 percent rating. ROM on forward flexion to 15 degrees or less warrants a 30 percent rating. 38 C.F.R. § 4.71a, General Formula.
Normal ROM for the cervical spine is 0 to 45 degrees for forward flexion, backwards extension, and lateral flexion; and, 0 to 80 degrees for lateral rotation. See 38 C.F.R. § 4.71a, Plate V.
Discussion
Historically, a November 2009 rating decision granted service connection for the cervical spine disability and assigned a 20 percent rating, effective in February 2007. See 11/13/2009 Rating Decision-Narrative. VA received the Veteran’s current claim of entitlement to an increased rating in October 2013. See 10/04/2013 VA Form 21-4138.
The September 2014 examination report (09/09/2014 C&P Exam, 1st Entry, P. 1-11) reflects a history of a spinal fusion at C3 and C4 in 2007. The Veteran reported that his neck disability was essentially the same as it was at the 2010 examination. He complained that his neck did not move and that he was in constant pain at the posterior neck, which he assessed as of 7-8/10 intensity. He denied any radiating pain. When asked what aggravated his symptoms and to describe his flare-ups, if any, the Veteran responded, “I don’t know what to tell you,” and that he had been undergoing physical therapy since 2006. (Quotes in original). Id., at 3. Physical examination revealed ROM on flexion to 30 degrees; backward extension to 5 degrees; lateral flexion to 15 degrees on the right and to 10 degrees on the left; and, right lateral rotation to 30 degrees, and left to 40 degrees, all with objective evidence of pain at the endpoint of the motion. There was pain or tenderness to palpation of the soft tissue but no muscle spasm or guarding. The examiner assessed the Veteran’s functional loss as less movement than normal, pain on movement, and interference with sitting or standing or weight bearing. The examiner noted that a May 2013 MRI examination showed multilevel DDD.
The objective findings on clinical examination show that the orthopedic symptoms of the Veteran’s cervical spine disability continued to more nearly approximate the assigned 20 percent rating. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met or approximated, as the ROM on forward flexion was greater than 0 to 15 degrees. Further, the examiner that repetitive-use testing did not reveal any additional loss of ROM.  Hence, a higher rating was not indicated on that basis. See 38 C.F.R. §§ 4.40, 4.45. The examiner noted that solely on the basis of the examination, he could not opine on the degree of additional loss of ROM, if any, due to flare-ups or repeat use over time. See examination report at P. 11.
The Veteran’s representative in the Appellate Brief on the Veteran’s behalf noted the examiner’s disclaimer but did not assert error per Sharp v. Shulkin, 29 Vet. App. 26 (2017). See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Instead, the representative asserted that a new examination should be conducted because the 2014 examination is too old. See 07/12/2018 Appellate Brief, P. 6. The Board notes that, in any event, no prejudice accrued to the Veteran in the facts in this particular case. The Board notes further that the Veteran in essence did not in fact report any flare-up-related or repetitive-use symptoms. Instead, he stated he did not know what to say. Further, the Veteran’s outpatient physical therapy records reflect that his symptoms are essentially static; that is, the disability picture presented at the examination is essentially it, regardless of repeat use or use over time.
The weekly PT records note that the cervical spine manifested with severe cervical restriction with tenderness and muscle spasm. The objective findings reflect that the most significant restriction is on lateral flexion and lateral rotation, as there are no findings of motion on forward flexion of less than 0 to 20 degrees. In May 2013 the Veteran denied cervical weakness, numbness, or any bowel/bladder symptoms. See 05/12/2014 Medical Treatment-Non-Government Facility, P. 8. In February and July 2014, increased cervical tenderness and spasm were noted, and motion on forward flexion was to 30 degrees. Right lateral motion was severely restricted. Id., P. 17, 27; see also 11/10/2016 Government Facility. When the noted PT records, et al are reviewed, the Veteran presented at the weekly PT sessions after having sustained falls as well as under his usual daily routine. Hence, the Board finds that any Sharp error was rendered harmless by the evidence of record, which shows that the orthopedic symptoms of the cervical spine disability more nearly approximates the assigned 20 percent rating. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71, DC 5299-5141.
Although the Veteran’s cervical spine disability is rated analogously to spinal fusion, the Board finds that the evidence of record is against a rating based on ankylosis. 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. 38 C.F.R. § 4.71a, General Formula, Note (5). The evidence of record clearly mitigates against a higher rating based on unfavorable or favorable ankylosis, as the Veteran’s cervical spine is capable of ROM, albeit limited.
Concerning the assertion that a rating should not be based on a 2014 examination, the need for a more current examination is not determined solely on the basis of the elapsed time since the last examination but by the facts of record. See VAOPGCPREC 11-95 (April 1995). As noted, the Veteran reported that his cervical spine disability was essentially unchanged since 2010. Further, the physical therapy records, as set forth above, show that his symptoms are essentially static. Thus, the Board finds that the preponderance of the evidence of record shows that the orthopedic symptoms of the Veteran’s cervical spine disability have not worsened since the September 2014 examination.
Neurologically, muscle strength, reflexes, and sensation were normal throughout the upper extremities (UE); and, the examiner noted that there was no evidence of IVDS, ankylosis, or vertebral fracture. Hence, the examiner noted that there was no evidence or signs of cervical radiculopathy. Nonetheless, this issue is discussed further in the remand section of this decision below. Further, the Veteran denied the use of any assistive devices, and the examiner noted that he had not lost the use of his cervical spine. 
2. Increased rating for DDD/IVD, upper lumbar segments
Discussion
The rating decisions of record reflect that the AOJ assigned the initial rating under DC 5243 for IVDS. See 11/13/2009 Rating Decision-Codesheet; 09/25/2014 Rating Decision-Codesheet. The General Formula rates IVDS on the basis of incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined 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. Id., Note (1). The evidence of record, however, to include the examination report, reflects no findings of IVDS or physician-prescribed bedrest. Hence, the Veteran’s disability will be rated on the basis of its orthopedic and neurologic manifestations.
The maximum rating for limitation of motion (LOM) of the lumbar spine is 40 percent. 38 C.F.R. § 4.71a, General Formula. The November 2009 rating decision that granted service connection assigned a 40 percent rating at that time. Hence, the Veteran has received the highest allowable schedular rating for the chronic orthopedic symptoms of his thoracolumbar spine DDD. The Veteran’s representative asserts that a higher rating should be allowed on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The Board is not authorized to allow an extraschedular rating in the first instance. Id.; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Neither the Veteran nor his representative asserts any specific basis by which his claim might qualify for referral for consideration on an extraschedular basis. Specifically, what, if any, facet of his thoracolumbar spine disability is not contemplated by the General Rating Schedule. The core symptom of the Veteran’s disability is pain, which the General Formula specifically addresses. In the absence of evidence of symptomatology not contemplated by the rating criteria, there is no factual basis for referral for consideration of a higher rating on an extraschedular basis. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
The representative also asserted that there was Sharp error on the thoracolumbar spine part of the examination, as the examiner again noted that it would be speculative to attempt to quantify in terms of additional loss of degrees of ROM during flare-ups or repeat use over time. The Board rejects the assertion because 38 C.F.R. § 4.40 and 4.45 are not for application where a claimant is in receipt of the highest rating for LOM. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, the Board finds no error and no necessity for a remand.
As noted earlier, the General Formula requires that associated neurological symptoms be rated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1).
The examination report reflects that while the Veteran reported pain from his neck to his waist, he did not report any complaints of radiating pain or other neurological symptoms (09/09/2014 C&P Exam, 1st Entry, P. 14). The examination report reflects that neurological examination revealed normal muscle strength, reflexes, and sensation, and that there was no muscle atrophy. Straight leg raising was negative on the left, and the Veteran was unable to perform it on the right because he was wearing a protective boot due to an ankle fracture. The examiner noted that there were no signs of radiculopathy. Id., 17-19. The examiner also noted that there was no evidence of IVDS.
The records of the Veteran’s weekly PT session reflect complaints of alternating left and right sciatica. In March 2015 he complained of low back pain that radiated to the right hip and to the right leg. Straight leg raising was positive on the right. 07/09/2015 Non-Government Facility, 1st Entry, P. 12-13. In April 2015 and August 2015, left sciatica was noted. 11/10/2016 Government Facility, 2nd Entry, P. 12. Affording the Veteran all benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the thoracolumbar spine DDD manifests with radiculopathy. 38 C.F.R. §§ 3.102, 4.3.
Sciatica is rated as incomplete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. The Board finds that the PT records primarily note radiating pain. There are no notations of decreased or absent reflexes or diminished strength. Hence, a higher rating has not been met or approximated. Further, the earliest date on which is factually ascertainable that lumbar radiculopathy manifested is March 18, 2015. See 07/09/2015 Non-Government Facility, 1st Entry, P. 12; see also 38 C.F.R. § 3.400.
The September 2014 examination report reflects that the examiner noted that the Veteran should be examined again after he no longer had to wear the protective boot on his right foot. The AOJ certified this appeal to the Board on May 1, 2017 (05/01/2017 Form 8). Hence, the Board closes the rating period for neurological manifestations on April 30, 2017.
Concerning both the cervical and thoracolumbar spine claims, the Board notes that in 2008 there was evidence of a positive ANA, which screens for rheumatoid arthritis. See 02/21/2015 Non-Government Facility, 2nd Entry, P. 11. The entire evidence of record, however, does not reflect confirmatory evidence of rheumatoid arthritis. Hence, the Board finds no factual basis for rating the disability under 38 C.F.R. § 4.71a, DC 5002.
Occupational Impairment
An October 2010 rating decision granted a total rating due to the Veteran’s service-connected disabilities (TDIU), effective in February 2007. See 10/07/2010 Rating Decision. The current rating period started in October 2013. See 10/16/2013 VA 21-4138. Hence, the Veteran has already been compensated for the occupational impairment of his disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Further, since the TDIU was based on more than one disability, he is not entitled to special monthly compensation. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).
REASONS FOR REMAND
1. Entitlement to service connection for headaches associated with status post- posterior cervical laminectomy with facetectomy is remanded.
The September 2014 examination report reflects the opinion that the Veteran’s headaches were most likely a residual of his stroke or a subdural hematoma sustained by the Veteran, and not his cervical spine disability. See 09/09/2014 C&P Exam, 1st Entry, P. 22-35, 29. A March 2017 examination report reflects that a VA examiner opined that the Veteran’s headaches were not due to his lumbar spine DDD. See 03/21/2017 C&P Exam, 1st Entry. Neither examiner, however, addressed whether the Veteran’s cervical spine disability chronically worsened his headaches disorder. Hence, an addendum is needed.
2. Entitlement to an initial rating higher than 10 percent each for associated LE lumbar radiculopathy for the period May 1, 2017 forward
The examiner who conducted the September 2014 examination noted that the Veteran should be examined again after he no longer was required to wear a protective boot on his right foot. The Veteran also noted in his written submissions that the wear of the boot impacted his ability to fully execute the movements needed for a complete examination, such as removing his trousers.
The matter is REMANDED for the following action:
1. Send the claims file to an appropriate examiner for review. Ask the examiner to opine on whether there is at least a 50 percent probability that the Veteran’s service-connected cervical spine disability worsens his headaches disorder beyond its natural progression. If the answer is yes, the examiner should make specific findings sufficient for the AOJ to determine a baseline of aggravation. A full explanation must be provided for all opinions provided.
2. The AOJ shall arrange a neurological examination by an appropriate examiner to determine whether the Veteran’s cervical spine disability includes UE radiculopathy and, if so, the current level of severity of the disorder. The examination should also determine the current severity of LE radiculopathy.

 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W.T. Snyder