Citation Nr: 18157741 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-02 041 DATE: December 13, 2018 ORDER From December 1, 2012, entitlement to an initial rating of 20 percent, but not more, for cervical spondylosis is granted. FINDING OF FACT From December 1, 2012, and resolving all reasonable doubt in the Veteran’s favor, the record evidence supports that the Veteran’s cervical spondylosis manifested with cervical spine forward flexion range of motion greater than 15 degrees, but not greater than 30 degrees. CONCLUSION OF LAW From December 1, 2012, the criteria for an initial rating of 20 percent for cervical spondylosis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to November 2012. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2013 rating decision issued by the Department of Veterans Affairs (VA). See February 2014 Notice of Disagreement (NOD); November 2014 Statement of the Case (SOC); November 2014 rating decision; December 2014 Substantive Appeal (VA Form 9). The RO determined that the Veteran’s cervical spondylosis warrants a noncompensable rating prior to November 3, 2014, but that starting on November 3, 2014, the evidence supports an initial rating of 20 percent. See November 2014 SOC; November 2014 rating decision. The Veteran, through his representative, indicates that he agrees with the 20 percent rating evaluation and appeals only that the 20 percent rating should be assigned prior to November 3, 2014. See December 2014 VA Form 9. Entitlement to an initial rating of 20 percent for cervical spondylosis for the period prior to November 3, 2014. The Veteran asserts that the medical evidence supports entitlement to a 20 percent rating for cervical spondylosis prior to November 3, 2014. After careful review of the evidence and resolving all reasonable doubt in the Veteran’s favor, the Board agrees. The Veteran’s cervical spondylosis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, and is currently noncompensable prior to November 3, 2014, and assigned a 20 percent rating effective November 3, 2014. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The General Rating Formula for Diseases and Injuries of the Spine under DC 5237 provides that a 10 percent rating requires evidence of a forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or a 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 abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237. A rating of 20 percent 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. Id. The next higher rating of 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes under DC 5237 provides that a 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week, but less than 2 weeks, during the past 12 months; a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; and the next higher rating of 40 percent is warranted with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. Id. As an initial matter, the Board notes that this is an original claim for compensation filed within a year after the Veteran’s separation from service, so the earliest effective date for an award of compensation is December 1, 2012, the day after his separation from active service. See 38 C.F.R. § 3.400(b)(2); February 2013 VA Form 21-4138. The Veteran was afforded a VA examination for his cervical spine in November 2014, and those findings support the General Rating Formula for Diseases and Injuries of the Spine criteria for a 20 percent rating under DC 5237. The Veteran related that his cervical symptoms started in August 2010, with initial treatment to reduce pain, but having a gradual decline in his condition. See November 2014 VA examination. The VA examiner found that the Veteran’s cervical spine forward flexion was limited to 35 degrees, with pain beginning at 30 degrees. Id. The VA examiner also found that the Veteran’s cervical spine forward flexion reduced by five degrees, to a forward flexion of 30 degrees, after repetitive use or during a flare¬ up. Id. The VA examiner’s findings are consistent with the medical treatment evidence showing multi-level degenerative changes in the Veteran’s cervical spine with mild progress after physical therapy. See January 2011 Service treatment records. The Board recognizes the Veteran was also afforded a March 2013 VA examination for his cervical spine, in which the Veteran was evaluated as having 45 degrees or greater cervical spine forward flexion with no reported flare ups or additional restriction after repetitive use. See March 2013 VA examination. These findings are probative as March 2013 VA examiner is a medical professional qualified to evaluate the Veteran’s cervical spine and the examination was performed during the relevant period. However, these findings are less consistent with the Veteran’s statements about continued restrictions from his cervical spine symptoms since its onset in 2010. See November 2014 VA examination. The March 2013 examination also does not address Veteran’s cervical active and passive range of motion, or when weight bearing and non-weight bearing. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). While the March 2013 VA examination findings raises a reasonable doubt as to whether the Veteran’s current cervical spine symptoms existed prior to November 3, 2014, in considering all the evidence and resolving any reasonable doubt in the Veteran’s favor, the Board finds there is sufficient persuasive evidence that the Veteran’s cervical spondylosis more nearly approximates the criteria for a 20 percent rating for the period from December 1, 2012, under the General Rating Formula for Diseases and Injuries of the Spine under DC 5237. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel