Citation Nr: 18161272 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 10-22 336A DATE: December 31, 2018 ORDER Entitlement to a disability rating of 30 percent (but no higher) prior to June 28, 2016 for a cervical spine disability is granted. FINDINGS OF FACT 1. The evidence shows that the Veteran’s forward flexion in his cervical spine was limited to 15 degrees or less during the period at issue. 2. The preponderance of the evidence is against a finding that the Veteran experienced unfavorable ankylosis of his entire cervical spine during the period at issue. 3. The preponderance of the evidence is against a finding that the Veteran suffered from episodes of Intervertebral Disc Syndrome (IVDS) having a total duration of at least 4 weeks during the past 12 months.   CONCLUSION OF LAW The criteria for entitlement to a disability rating of 30 percent (but no higher) prior to June 28, 2016 for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1983 to December 2003. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2014 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the evidentiary record. The Board remanded this matter in May 2014 and February 2015 for further development. In a July 2017 decision, the Board denied several claims including entitlement to a disability rating exceeding 20 percent prior to June 28, 2016 for a cervical spine disability. The Veteran appealed the July 2017 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2018 order, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision in regard to the issue of entitlement to a disability rating exceeding 20 percent prior to June 28, 2016 for a cervical spine disability. The order dismissed the appeal regarding all other issues. The JMPR notes the Board’s prior decision did not adequately address evidence that the Veteran suffered from greater limitations of the cervical spine during flare-ups than the prior VA examinations specified. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Effective September 26, 2003 through the present, the spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under the IVDS formula, 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. In pertinent part, schedular disability ratings are assigned for the spine according to the formulas as follows: Under the General Formula, a 30 percent disability rating contemplates forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 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 General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. 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. After reviewing the totality of the evidence, the Board finds that the evidence shows that the Veteran’s forward flexion in the cervical spine was limited to 15 degrees or less during the period at issue to include during flare-ups. While multiple VA examinations during the period at issue demonstrated the Veteran was capable of forward flexion of the cervical spine exceeding 15 degrees, the JMPR notes that the examiners indicated the Veteran had additional limitations during flare-ups. See January 2011 VA cervical spine examination (noting the Veteran had flare-ups of neck pain during cold, rainy weather); August 2009 VA cervical spine examination (noting the Veteran has increased pain, increased stiffness, and reduced range of motion in the neck during flare-ups). However, the examiners did not adequately specify the reduction in cervical forward flexion during flare-ups in degrees, and the Veteran has indicated his disability picture at the time was more severe than assessed. The Board also notes a subsequent VA cervical spine examination on June 28, 2016 established the Veteran was limited to 15 degrees of forward flexion or less during flare-ups, which supports the Veteran’s current 30 percent rating. Considering the deficiencies in the earlier VA cervical spine examinations and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability picture for his cervical spine more nearly approximated forward flexion of the cervical spine of 15 degrees or less prior to June 28, 2016. Therefore, the Board finds that the Veteran is entitled to a disability rating of 30 percent (but no higher) for his cervical spine disability prior to June 28, 2016. However, the Board notes that all VA spine examinations relating to the period at issue indicate the Veteran has not suffered from ankylosis or incapacitating episodes of IVDS having a total duration of at least 4 weeks during the past 12 months. Moreover, the Board finds no compelling evidence in the pertinent treatment records or specific contentions from the Veteran or his representative demonstrating the Veteran suffered from ankylosis or IVDS symptoms consistent with the criteria for a 40 percent or higher rating. According to the JMPR, the Veteran is not pursuing a rating exceeding his current 30 percent rating, and the Board finds no compelling evidence that the Veteran’s disability picture was substantially worse during the period at issue. Accordingly, entitlement to a disability rating exceeding 30 percent for a cervical spine disability prior to June 28, 2016 is denied. REFERRED The issues of entitlement to service connection for a digestive condition and headaches were raised at the December 2014 hearing and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. See also July 2017 Board decision. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel