Citation Nr: 1806916 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-14 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to September 29, 2016, and to a rating in excess of 30 percent thereafter for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2006 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, granted a 10 percent rating for degenerative disc disease of the cervical spine. During the pendency of appeal, a rating decision accompanying the Supplemental Statement of the Case (SSOC) granted an increased disability rating. The increased rating does not account for a 100 percent rating; therefore this matter is properly before the Board. FINDINGS OF FACT 1. For the appeal period prior to September 29, 2016, the Veteran's cervical spine was limited to, at worst, 30 degrees of forward flexion. 2. For the appeal period from September 29, 2016, the Veteran's cervical spine was limited to, at worst, 15 degrees of forward flexion. CONCLUSION OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for a cervical spine disability prior to September 29, 2016, have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 30 percent for a cervical spine disability from September 29, 2016 have not been met. 38 U.S.C.§ 1155 (West 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with 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 the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially 'absurd results'. Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. A January 2013 rating decision established service connection for degenerative disc disease, C5-C6 and C6-C7 of the cervical spine, with an evaluation of 10 percent under Diagnostic Code 5237. The Veteran appealed that decision. Subsequently, by a rating action dated in November 2017, the 10 percent rating was increased to 30 percent, effective from September 29, 2016. The Veteran is also in receipt of separate compensable ratings for a lumbar spine condition and radiculopathy of the bilateral lower extremities. A rating decision of December 2017 adjusted the date of service connection to the Veteran's date of separation. The Veteran's Notice of Disagreement received in March 2013 included a lay statement from the Veteran stating that the range of motion in his neck was "horrible", and that he believed the physician at his examination recorded the findings incorrectly. In April 2014, the Veteran also included a lay statement with his formal appeal, VA Form 9, in which he indicated he was unable to turn his neck while driving and his need for pain medication. VA regulations provide that disabilities of the spine, including under Diagnostic Codes 5237 (lumbosacral or cervical strain), 5242 (degenerative arthritis of the spine), and 5243 (intervertebral disc syndrome), are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for rating Diseases and Injuries of the Spine provides a 100 percent rating for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Under the Diagnostic Codes for the spine, specifically Diagnostic Code 5237 as it pertains to the cervical spine, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or with favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or with 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. See 38 C.F.R. § 4.71a Diagnostic Codes 5235-5243. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). On VA examination in December 2012, the Veteran complained of pain and stiffness during flare-ups of his cervical spine injury. The Veteran denied the use of assistive devices such as a brace. The examiner noted normal posture and gait in addition to normal muscle strength and reflexes. The examiner recorded the diagnostic findings of mild disc space narrowing at C5-C6 and C6-C7 levels with osteophyte formation. The examiner also determined that no neurologic abnormalities, radiculopathy, or intervertebral disc syndrome (IVDS) were present. Additionally, no spasm or ankylosis was found. The Veteran reported pain on motion with pain limiting motion. Range of motion studies of the cervical spine revealed, at worst, forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees, with a combined range of motion of 230 degrees. There was no evidence of additional loss of function or range of motion after three repetitions of motion. Based upon the evidence of record, the Board finds that for the period prior to September 29, 2016, the Veteran's service-connected cervical spine disability was manifested by forward flexion greater than 15 degrees without evidence of ankylosis. Accordingly, for the period prior to September 29, 2016, a rating of 20 percent, but no higher, is warranted. A higher rating of 30 percent requires forward flexion of 15 degrees or less, or, favorable ankylosis of the cervical spine. Prior to September 29, 2016, the Veteran's forward flexion was tested to be 30 degrees, and there was no evidence of ankylosis, therefore, a higher rating is not warranted. On VA examination in September 29, 2016 the Veteran complained of sharp stabbing pain in the neck and shoulders with severe attacks of muscle spasms. He stated his pain is constant at a 9/10 level. The Veteran reported that he also gets headaches, which have been separately service-connected, evaluated, and rated for VA purposes. The Veteran did report use a neck brace on occasion. The examiner indicated that the Veteran had localized tenderness, guarding or muscle spasm of the cervical spine that did not result in abnormal gait or abnormal spinal contour. Muscle strength and reflexes were normal. The examiner also noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. Further, the veteran had no ankylosis of the spine, nor any other neurologic abnormalities or findings related his cervical spine condition, including symptoms of intervertebral disc syndrome (IVDS). At the September 2016 examination, the Veteran experienced pain on motion with pain limiting motion after repetitive use over time. Considering limitations from pain, range of motion studies of the cervical spine revealed, at worst, forward flexion to 15 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees, with a combined range of motion of 125 degrees. The Board finds that for the period from September 29, 2016, the Veteran's service-connected cervical spine disability was manifested by forward flexion of 15 degrees or less without evidence of ankylosis. A rating in excess of 30 percent for the period from September 29, 2016 is not warranted. A higher rating of 40 percent requires unfavorable ankylosis of the entire cervical spine. Here, the VA examination of September 2016 found no ankylosis of the cervical spine, therefore, a higher rating is not warranted. Further, a separate neurological rating is not appropriate in this case, as the Veteran does not have any associated objective neurological abnormalities related to the cervical spine, including radiculopathy or IVDS, as noted above. The Board acknowledges that the Veteran is competent to report symptoms of his spine disabilities as he did in his lay statements. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The medical findings in this case are shown to have considered his reported symptoms and directly address the criteria under which his disabilities are evaluated. The Board accords these objective findings greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial rating of 20 percent prior to September 29, 2016, for a cervical spine disability is granted. Entitlement to a rating in excess of 30 percent from September 29, 2016, for a cervical spine disability is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs