Citation Nr: 1807789 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-02 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for service-connected cervical spine degenerative disc disease (DDD), C6-7, with spondylosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 through January 1987. His period of service from August 9, 1978 through May 16, 1985 was under honorable conditions. However, his period of service from May 17, 1985 through January 5, 1987 is considered to have been under dishonorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which granted service connection for cervical spine DDD, C6-7, with spondylosis, with a 10 percent initial disability rating, effective from May 28, 2009. In January 2013, the RO increased the initial disability rating to 20 percent. The Veteran timely appealed and, in June 2015, the Board denied an initial disability rating in excess of 20 percent. The Veteran testified on his claim for a higher evaluation for his cervical spine disability in January 2015. A transcript of this testimony is associated with the claims file. In June 2015, the Board issued a decision denying a higher evaluation. In October 2016, the Veteran appealed the 20 percent rating to the United States Court of Appeals for Veterans Claims (CAVC). In April 2017, CAVC issued an order for VA to comply with a Joint Motion for Partial Remand (JMR). In June 2017, the Veteran elected to have the AOJ review additional evidence that would be forthcoming. In July 2017, the Board remanded this matter for development and a VA examination. In January 2018, the RO noted that that the Veteran's vocational rehabilitation folder had not yet been associated yet with the claims file and thus could not be certified. See January 2018 deferred rating. As such, even though the issue of entitlement to vocational rehabilitation benefits has been perfected for appeal, this issue is not yet ripe for adjudication by the Board. Finally, in an increased rating claim, the Board has jurisdiction over a total disability rating based on individual unemployability (TDIU) claim as well. However, as the Veteran was granted TDIU in an August 2016 rating decision, effective July 13, 2015, the matter of a TDIU is moot. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 3.321(b)(1)(2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's cervical spine DDD with spondylosis has been manifested by chronic pain, stiffness, fatigability, incoordination, weakness, diminished cervical spine forward flexion to no less than 20 degrees with limitations of pain during motion being considered, intervertebral disc syndrome (IVDS), and combined cervical spine motion to no less than 135 degrees; however, it has not been manifested by ankylosis or required any physician prescribed bed rest. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for cervical spine DDD, C6-7, with spondylosis, are neither met nor approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA fulfilled its duty to notify with an October 2009 letter. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's claims submissions, lay statements, service personnel records, service treatment records, VA treatment records, and identified and relevant private treatment records have been associated with the claims file. During the course of this appeal, the Veteran was afforded September 2009, November 2012, February 2014, March 2016, and September 2017 VA examinations. These examinations, considered along with the other evidence of record, is fully adequate for the purposes of determining the severity of the Veteran's service-connected cervical spine DDD, C6-7, with spondylosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). II. Disability Rating for Cervical Spine Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied. If the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55. Throughout the course of the appeal period, the Veteran's cervical spine disability has been rated according to the criteria under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242, which provides the criteria for degenerative arthritis of the spine. The rating criteria for cervical and thoracolumbar spine disabilities are expressed under DCs 5235 through 5242. Regardless of which criteria between DC 5235 through 5242 are applied, disabilities characterized under those DCs are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). For cervical spine disabilities, the General Formula provides for a 20 percent disability rating for disabilities marked by 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. A 30 percent disability rating is appropriate for disabilities marked by forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. For VA compensation purposes, the "combined range of motion" for the cervical spine refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) defines that normal range of motion of the cervical spine includes forward flexion and backward extension to 45 degrees each, lateral flexion to 45 degrees to each side, and lateral rotation to 80 degrees to each side. The normal combined range of motion of the cervical spine is 340 degrees. Ankylosis has been defined as, "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 69 (4th ed. 1997)). The criteria under the General Formula contemplate symptoms such as pain, stiffness, aching, etc., where such symptoms are shown in the record. Thus, evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. 68 Fed. Reg. 51,455 (Aug. 27, 2003). Disabilities of the musculoskeletal system, such as spine disabilities, are primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. As discussed in greater detail below, the evidence suggests that the Veteran's cervical spine disability may also be manifested IVDS. Under DC 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. A 40 percent disability rating is assigned for disabilities with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a maximum schedular 60 percent disability rating is appropriate for disabilities manifested by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Accompanying Note (1) under DC 5243 instructs that, for purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest and prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The pertinent evidence includes the findings from a September 2009 VA examination. During that examination, the Veteran reported ongoing neck pain, but denied having any surgery for his neck or cervical spine. He also denied having any flare-ups of his neck symptoms and also denied having any incapacitating episodes in relation to his neck. On physical examination, the Veteran demonstrated cervical spine motion that included painless flexion to 45 degrees; painless extension to 30 degrees; right and left lateral flexion to 30 degrees with slight discomfort being reported at the ends of motion; and painless left and right lateral rotation to 80 degrees. Based upon those findings, demonstrated combined cervical spine motion was 295 degrees. Repetitive motion against resistance was not productive of further loss of motion or additional, pain, weakness, impaired endurance, incoordination, or instability. Palpation of the neck area did not produce any tenderness. X-rays revealed DDD at C6-7. The examiner diagnosed marked DDD at C6-7 with spondylosis. VA treatment records dated through July 2017 document ongoing complaints of neck pain, but do not indicate regular VA treatment for his neck symptoms. Notably, a June 2011 VA treatment record notes that a physical examination that included range of motion tests of the cervical spine indicated full ranges of motion with mild discomfort being reported by the Veteran during flexion and extension. During a November 2012 VA examination, the Veteran denied experiencing any significant change in his neck condition since his previous examination in 2009. He reported daily achy pain with stiffness in his neck region that was generally worsened by cold weather. He reported also that he experienced two or three flare-ups of neck pain a month, with each flare-up lasting for up to several hours. He stated that he avoided rotating his neck, especially to the left side, during such flare-ups. Occupationally, the Veteran reported that he last worked as an account executive salesman, but that he had not been employed since February 2010. Still, he denied that his cervical spine disability caused any functional limitations or that it was the cause of his unemployment. On examination, the Veteran was able to produce cervical spine forward flexion to 45 degrees with pain beginning at 40 degrees; extension to 45 degrees with pain beginning at 40 degrees; right lateral flexion to 30 degrees with pain being reported from 25 degrees; left lateral flexion to 45 degrees with pain beginning at 35 degrees; right lateral rotation to 80 degrees with pain beginning from 70 degrees; and left lateral rotation to 75 degrees with pain beginning from 60 degrees. Repetitive motion tests were productive of further loss of right lateral flexion to 25 degrees, left lateral flexion to 40 degrees, and left lateral rotation to 65 degrees due to weakness, incoordination, and pain. Taking into consideration reported pain and further loss of motion after repetitive movements, the foregoing data indicates no less than 270 degrees. Localized tenderness to palpation was noted over the cervical spine and guarding was observed. Spasms were present and productive of an abnormal spine contour. IVDS was not observed at that time. A cervical spine MRI revealed findings consistent with DDD at C6-7. During re-examination of the cervical spine in February 2014, the Veteran continued to report ongoing and daily neck pain that continued to flare-up in cold weather. According to the Veteran, these flare-ups occurred two or three times a week and rendered the Veteran unable to do anything for several hours. He stated that when pain was severe, he lay down for a few hours until the pain subsided. He continued to deny any history of surgery or injections for the cervical spine. He also continued to deny having any periods of incapacitation marked by physician prescribed bed rest over the previous 12 months. On examination, the Veteran demonstrated cervical spine motion that included forward flexion to 45 degrees; extension to 40 degrees; right and left lateral flexion to 35 degrees; and right and left lateral rotation to 65 degrees. Pain was reported at the endpoints of all motion, except for left lateral rotation, where pain reportedly began from 60 degrees. Repetitive motion was productive of additional loss of left lateral rotation to 60 degrees, but did not result in any further loss of motion in any other direction of cervical motion. The foregoing range of motion results indicated combined cervical spine motion of no less than 280 degrees. Localized tenderness was noted with palpation over the cervical spine. Also, muscle spasms were observed; however, the spasms at that time were not productive of abnormal gait or spine contour. No guarding was observed. There was no evidence of ankylosis. Although IVDS was noted by the examiner, again, the Veteran denied having any periods of incapacitation with physician prescribed bed rest at any time over the preceding 12 months. X-rays revealed straightening of the normal lordosis with mild scoliosis; once again, however, those manifestations did not cause an abnormal gait. Overall, the radiological findings were interpreted as showing DDD at C6-7. Occupationally, the examiner opined that, despite symptoms of pain, fatigability, incoordination, and weakened movement during repetition, those symptoms did not limit the Veteran's functional ability significantly. As such, the examiner opined, no decrease in range of motion was expected during repetitive motion in the performance of his occupation or during flare-ups. During his January 2015 Board hearing, the Veteran continued to report constant neck pain that worsened in cold weather and after being seated for long periods of time. Thus, he testified that he required the opportunity to stand up and walk around periodically. In terms of function, he testified that he had problems bending over and lifting for long periods. In March 2016, the Veteran again appeared for a VA examination. Upon file review, the examiner diagnosed the Veteran as having cervical spine DDD C6-7 with spondylosis, IVDS, and cervical radiculopathy of the left upper extremity. The examiner stated that the Veteran reported that he fell and landed on his neck while he was in the military. The Veteran reported that he was paralyzed for three months and that neck pain continued and became recurrent. The Veteran stated that he started to develop left arm numbness and tingling from elbow down to the last 3 fingers. The Veteran reported that his neck condition had worsened with reports that he had daily continuous neck pain, tightness, stiffness. The Veteran reported that he was unable to sleep in a bed and that he had to sleep in a recliner due to neck pain. The Veteran stated that he was unable to sit for extended periods of time due to increased neck pain and that he experienced frequent muscle spasms and headaches caused by the neck pain, that he had numbness in the last 3 fingers of his left hand, and that he had tingling from his elbow down to his fingers. The Veteran stated that he took Ibuprofen, Oxycodone, and Meloxicam as needed for his neck pain. The Veteran has done physical therapy and uses a TENs unit. The Veteran had not undergone surgery. The Veteran reported that he experienced flare-ups of the cervical spine. The examiner noted that the functional loss or functional impairment of the cervical spine included decreased range of motion, excess fatigability, increased stiffness, and tightness with muscle pain. With respect range of motion, the examiner noted that the Veteran's range of motion was abnormal or outside the normal range. His forward flexion was 0 to 35 degrees; extension was 0 to 20 degrees; right lateral flexion was 0 to 20 digress; left lateral flexion was 0 to 25 degrees; right lateral rotation was 0 to 45 degrees; and left lateral rotation was 0 to 55 degrees. The foregoing range of motion results indicate combined cervical spine motion of no less than 200 degrees. However, the examiner stated that the Veteran's abnormal range of motion did not itself contribute to a functional loss. The examiner noted that pain was noted on examination and caused functional loss in forward flexion; extension; right lateral flexion; left lateral flexion; right lateral rotation; and left lateral rotation. The examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associate soft tissue of the cervical spine in the form of wincing when pressure was applied to the right aspect of the neck, lateral to the spine. The examiner rated this pain as of moderate severity and stated it was due to a residual from the Veteran's diagnosed conditions. The examiner noted no evidence of pain with weight bearing. The examiner reported that the Veteran was able to perform repetitive-use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. The examiner reported that the Veteran was not being examined immediately after repetitive use over time and that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain and fatigue significantly limited the Veteran's functional ability with repeated use over time, but was unable to describe this limitation in terms of range of motion. The examiner stated that the examination was not being conducted during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. However, the examiner stated that the Veteran's pain and fatigue significantly limited the Veteran's functional ability with flare-ups, but could not describe this limitation in terms of range of motion. The examiner noted that the Veteran had guarding or muscle spasm of the cervical spine, but that it did not result in abnormal gait or abnormal spinal contour. The Veteran reported spasms, throbbing, and tightness in the muscles in the right side of his cervical spine. The examiner stated the Veteran experienced localized tenderness that did not result in abnormal gait or abnormal spinal contour. The examiner noted that the Veteran exhibited no guarding. However, the Veteran did exhibit less movement than normal, weakened movement, and interference with sitting. The examiner stated that the Veteran exhibited 5/5 strength on both the right and left sides with respect to elbow flexion, elbow extension, and wrist flexion. The examiner noted no muscle atrophy. With respect to reflexes, the Veteran exhibited normal right side bicep, tricep, and bracioradialis. However, the examiner noted normal left side brachioradialis, but hypoactive bicep and tricep. With respect to light touch sensation, the examiner noted that the Veteran exhibited normal results for right shoulder, right inner/outer forearm, and right hand/fingers. However, the Veteran exhibited normal left shoulder area light touch sensation, but decreased light touch sensation on the left inner/outer forearm and left hand/fingers. The examiner noted that the Veteran exhibited symptoms associated with radiculopathy. The Veteran exhibited moderate constant pain, no intermittent pain, moderate paresthesias and/or dyesthesias, and moderate numbness in his left upper extremity. However, the Veteran did not exhibit constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in his right upper extremity. Aside from the above, the Veteran exhibited no other signs or symptoms of radiculopathy. The examiner concluded that the Veteran's radiculopathy has no effect on his right side, but moderate effect on his left side. The examiner noted no ankylosis of the spine and no other neurologic abnormalities or findings related to a cervical spine. The examiner diagnosed the Veteran with IVDS, but stated that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The examiner noted that the Veteran did not use any assistive devices and that his functioning was not so diminished that amputation would serve the Veteran. The examiner noted no scars nor any other pertinent physical findings, complications, conditions, signs, or symptoms related to any conditions associated with his diagnosed conditions. The examiner stated that no imaging studies had been performed and that there were no other significant diagnostic test findings or results. The examiner stated that the Veteran's cervical spine condition affected the Veteran's ability to work. The examiner explained that the Veteran worked at a call center where he had to sit for extended periods or time, and required more breaks to stretch his neck and help decrease pain and stiffness in the neck. The examiner opined that cervical radiculopathy and IVDS are progressions of the Veteran's service-connected cervical spine DDD C6-7 with spondylosis. The examiner explained that as part of the degenerative process of the cervical spine, changes in the spinal joints can lead to tightening of the space for the spinal canal. The examiner stated that when any nerve root in the cervical spine is irritated through compression or inflammation, the symptoms can radiate along that nerve's pathway into the arm and hand and that the intervertebral disc is found between each vertebra, acting as a shock absorber for the spinal column. The examiner stated that damaged intervertebral discs are a phenomenon of wear and tear, deterioration of the discs, and degeneration. The examiner explained that the Veteran's DDD caused his neck pain, tightness, and decreased range of motion. The examiner stated that the Veteran's radiculopathy caused the Veteran's left arm symptoms. In September 2017, the Veteran again appeared for another VA examination in accordance with the April 2017 CAVC Order. Upon file review, the examiner noted that the Veteran had an established diagnosis with a rating, mild left C7, C8 radiculopathy. The radiculopathy was diagnosed in 2014 in left upper extremity. The examiner noted that the March 2016 VA examiner agreed with the diagnosis of radiculopathy and IVDS. The examiner diagnosed the Veteran with degenerative arthritis of the spine, IVDS, DDD, and cervical radiculopathy. The examiner noted that the Veteran told him that he had a worsening numbness in his hands and that he had constant pain in his neck. The Veteran stated that he had not had injections and that he had had skilled physical therapy, with some being in 2017. The Veteran stated that he used medicine, Ibuprofen, and that he had occasionally taken opiates for his neck pain as well. Upon examination, the Veteran reported no flare-ups of the cervical spine. He reported functional impairment of the cervical spine because the pain discouraged use. The Veteran's initial range of motion measurements were abnormal or outside the normal range. His forward flexion was 0 to 20 degrees; extension was 0 to 15 degrees; right lateral flexion was 0 to 10 degrees; left lateral flexion was 0 to 10 degrees; right lateral rotation was 0 to 50 degrees; and his left lateral rotation was 0 to 50 degrees. The foregoing range of motion results indicated combined cervical spine motion of no less than 155 degrees. The examiner opined that the range of motion limitations contributed to a functional loss, noting that the Veteran stated it impacted his driving - "I turn my whole body, not just my neck." The examiner noted that the Veteran had pain with motion in his neck. The examiner noted pain on examination and that it caused functional loss in forward flexion; extension right lateral flexion; left lateral flexion; right lateral rotation; and left lateral rotation. The examiner further noted that there was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue of the cervical spine at the base of the cervical spine (paraspinal muscles) with modest severity. The examiner attributed this condition to DDD and degenerative joint disease. The examiner noted no pain with weight bearing and that the Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examiner noted that the Veteran was not being examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. However, the examiner noted that pain, weakness, fatigability, or incoordination significantly limited the Veteran's ability with repeated use over a period of time, with pain, fatigue, and lack of endurance being the cause the functional loss. With respect to range of motion after repeated use over time, the Veteran's forward flexion was 0 to 20 degrees; extension was 0 to 15 degrees; right lateral flexion was 0 to 10 degrees; left lateral flexion was 0 to 10 degrees; right lateral rotation was 0 to 40 degrees; and left lateral rotation was 0 to 40 degrees. The foregoing range of motion results indicated combined cervical spine motion of no less than 135 degrees. Regarding flare-ups, the Veteran's examination was not being conducted during a flare-up and the Veteran's examination was neither medical consistent nor inconsistent with the Veteran's statements regarding functional loss during flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner noted no guarding or muscle spasms of the cervical spine. The examiner noted that the Veteran's cervical spine exhibited less movement than normal and that it impacted his driving and anything else that would require much cervical movement. With respect to muscle testing, the Veteran was 5/5 on right and left side elbow flexion; elbow extension; wrist flexion; wrist extension; finger flexion; and finger abduction. The Veteran did not have muscle atrophy and his left and right reflexes were normal for his biceps, triceps, and brachioradialis. With respect to light touch testing, the Veteran tested normal on the right shoulder area; inner/outer forearm; and hand/fingers. On the left side, he tested normal on the shoulder area, but had decreased sensation to light touch on the inner/outer forearm and hand/fingers. With respect to radiculopathy, the Veteran exhibited no constant or intermittent pain on the right and left upper extremities. He also exhibited no paresthesis and/or dysesthesias or numbness on the right upper extremity. However, he exhibited moderate paresthesis and/or dysesthesias or numbness on the left upper extremity. As such, the examiner opined that the Veteran experienced no radiculopathy on the right side, but mild radiculopathy on the left side. The Veteran exhibited no ankylosis of the spine nor any other neurologic abnormalities related to the cervical spine. Regarding IVDS, the Veteran's diagnosed IVDS did not require bed rest prescribed by a physician nor treatment by a physician in the prior 12 months. The examiner noted that the Veteran did not use any assistive devices, nor did his cervical spine condition require amputation with prosthesis. The examiner further stated that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to any condition related to the Veteran's diagnosed cervical spine conditions, nor any related scars. With respect to diagnostic testing, the examiner conducted no imaging studies, nor had any other significant diagnostic test findings or results. The examiner noted that the Veteran's cervical spine condition affected his ability to work. His driving was impacted and when he needed to turn, he needed to turn his whole body. He has pain with upward gaze. He noticed that his typing was slowed by left hand numbness. He could work, but there is a bit of an impact by the range of motion and the numbness. He could lift and carry 25 pounds, but he had pain beyond that he would have pain with repetitive push or pull type activities. The Veteran experienced discomfort when cooking that required persistent posturing of the neck. With objective evidence of pain, the examiner noted that the Veteran's range of motion was the same for either active or passive motion. The examiner opined that additional conditions were found which were directly due to or related to the service-connected diagnosis (i.e. a progression.). The examiner stated the Veteran's the radiculopathy and IVDS stemmed from the DDD which is service connected. However, with respect to the diagnosis of multiple conditions and symptoms, the examiner stated that the symptoms and/or findings overlapped too much and preclude differentiation. The examiner noted that there were no flare-ups reported and that there was "chronic, constant" pain. The examiner noted that the Veteran had numbness in the left upper extremity and his neck was always in pain. He was able to type and he was currently studying for the LSAT to enter law school. Also, he was able to work at a sedentary occupation and he had no weakness. The Veteran's neck pain was distracting and did impact driving, but he did perform his activities of daily living without much issue. The examiner recommends that the Veteran not lift or carry much weight beyond 25 pounds and he would not recommend much lifting beyond 25 lbs. The examiner noted that the Veteran had difficulty with pushing and pulling, also. The examiner stated that he did not reject any of the Veteran's history. Analysis As an initial matter, the Board has considered the Veteran's lay testimony regarding having incapacitating episodes. While the September 2017 VA examiner and earlier VA examiners diagnosed IVDS, there is no indication in the record that any of the Veteran's treating physicians have prescribed bed rest for treatment of the Veteran's cervical spine disability. Indeed, the Board assigns more probative value to the September 2009, February 2014, and September 2017 VA examiners who noted no incapacitating episodes on examination and in interviewing the Veteran in person after file review. Additionally, the Veteran did not claim to have experienced incapacitating episodes at his 2015 Board hearing. As such, the Board does not consider this claim to fall under analysis utilizing the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The foregoing evidence shows that the Veteran's cervical spine disability has been manifested by chronic pain, stiffness, fatigability, incoordination, weakness, diminished cervical spine forward flexion to no less than 20 degrees with limitations of pain during motion being considered, and combined cervical spine motion to no less than 135 degrees in the most recent September 2017 VA examination. Repeated evaluations performed during treatment and during VA examinations showed no evidence of ankylosis and the Veteran has consistently denied (and indeed, the evidence does not show) any history of surgical intervention or in-patient care for his cervical spine. Overall, the criteria for a disability rating higher than 20 percent under the General Formula are neither met nor approximated by the demonstrated function and symptomatology. Mindful of the additional criteria in DeLuca, which are discussed above, the Board notes that the Veteran's cervical spine disability was, for all periods relevant to this appeal, manifested primarily by pain, stiffness, and loss of cervical spine motion. Nonetheless, in view of the extent of cervical motion shown by the Veteran throughout the relevant appeal period during ordinary motion tests and during repetitive motion tests, the disability picture shown in the evidence is not consistent with the degree of loss of motion contemplated for a higher disability rating under the General Formula, or, with ankylosis. See DeLuca, 8 Vet. App. at 204 -07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5235-42 (2013); 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). With respect to the April 2017 CAVC Order requiring the consideration of flare-ups, the September 2017 VA examination specifically discussed flare-ups, which the Veteran denied having at the examination. The examiner instead noted instead "chronic, constant pain" experienced by the Veteran and which has been considered in the examiner's determination of the Veteran's range of motion and subsequent VA rating. The Board has also considered whether "staged" disability ratings, beyond those already contemplated and provided in this decision, are warranted by the evidence. While the September 2017 VA examiner noted some worsening of symptoms, the symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings in this case. Overall, the evidence does not support the assignment of an initial disability rating in excess of 20 percent for cervical spine DDD, C6-7, with spondylosis. To that extent also, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected cervical spine degenerative disc disease, C6-7, with spondylosis, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs