Citation Nr: 18159918 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 11-21 854 DATE: December 21, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative disc disease (hereinafter “cervical spine disability”) denied. Entitlement to an initial rating in excess of 10 percent for L5-S1 degenerative disc disease (hereinafter “lumbar spine disability”) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s cervical spine disability was manifested by forward flexion of the cervical spine at 45 degrees; muscle spasms that did not result in abnormal gait or abnormal spinal contour; and intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 2. Throughout the period on appeal, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine at 90 degrees; muscle spasms that did not result in abnormal gait or abnormal spinal contour; and IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.71a, DC 5243 (2018). 2. The criteria for entitlement to an initial rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.71a, DC 5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 1983 and April 1994 to February 2010. These matters are on appeal from a September 2010 rating decision. In May 2016 correspondence, the Veteran indicated that he wished to withdraw his request for a travel Board hearing. Accordingly, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2018). Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability The Veteran’s cervical spine disability is assigned an initial 10 percent rating under DC 5243. Under this code, a 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Id. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent rating, the highest available, is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS will be evaluated under either DC 5242 or 5243, whichever method results in the higher evaluation. Under DC 5242, General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, 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 (2018). A 20 percent rating is assigned 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 is 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, reserved lordosis, or abnormal kyphosis. Id. 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. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran’s service-connected cervical spine disability is not warranted. Throughout the period on appeal, range of motion studies conducted on the Veteran’s cervical spine during April 2010 and April 2018 VA examinations, as well as throughout post-service treatment records, reflect the Veteran’s forward flexion of his cervical spine remained normal at 45 degrees. Additionally, 2010 and 2018 VA examination reports and post-service treatment records note that while the Veteran experienced muscle spasms in his cervical spine, there was no abnormal gait or abnormal spinal contour. Based on the foregoing evidence, the Board finds that a rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242, is not warranted. Further, the Board finds that a rating in excess of 10 percent under the Formula for Rating IVDS Based on Incapacitating Episodes, DC 5243, is also not warranted. Here, while the record reflects a diagnosis of IVDS, the 2010 VA examination report reveals that the total duration of the Veteran’s incapacitating episodes associated with his IVDS were at least one week but less than 2 weeks during the past 12 months, while the 2018 VA examiner found no current diagnosis of IVDS. The Board had considered the Veteran’s lay statements of record that he experiences pain due his cervical spine disability and takes medication on a daily basis. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran’s cervical spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of the Veteran’s cervical spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In sum, the Board finds that the current initial rating of 10 percent for a cervical spine disability adequately reflects the Veteran’s current impairment due to his service-connected disability. Accordingly, the claim for an initial rating in excess of 10 percent for a cervical spine disability is denied. 2. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability The Veteran’s lumbar spine disability is assigned an initial 10 percent rating under DC 5243. IVDS will be evaluated under either DC 5242 or 5243, whichever method results in the higher evaluation. Under DC 5242, General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 (2018). A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reserved lordosis, or abnormal kyphosis. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran’s service-connected lumbar spine disability is not warranted. Throughout the period on appeal, range of motion studies conducted on the Veteran’s thoracolumbar spine during 2010 and 2018 VA examinations, as well as throughout post-service treatment records, reflect the Veteran’s forward flexion remained normal at 90 degrees. Additionally, 2010 and 2018 VA examination reports and post-service treatment records show that, while the Veteran experienced muscle spasms in his lumbar spine, there was no abnormal gait or abnormal spinal contour. Based on the foregoing evidence, the Board finds that a rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242, is not warranted. Additionally, the Board finds that a rating in excess of 10 percent under the Formula for Rating IVDS Based on Incapacitating Episodes, DC 5243, is also not warranted. Here, while the record reflects a diagnosis of IVDS, the 2010 VA examination report reveals that the total duration of the Veteran’s incapacitating episodes associated with his IVDS were at least one week but less than 2 weeks during the past 12 months, while the 2018 VA examiner found no current diagnosis of IVDS. The Board had considered the Veteran’s lay statements of record that he experiences pain due his lumbar spine disability and takes medication on a daily basis. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran’s lumbar spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of the Veteran’s lumbar spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In sum, the Board finds that the current initial rating of 10 percent for a lumbar spine disability adequately reflects the Veteran’s current impairment due to his service-connected disability. Accordingly, the claim for an initial rating in excess of 10 percent for a lumbar spine disability is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel