Citation Nr: 1815281	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  10-22 523A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine with headaches.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1974 to August 1980, June 1986 to January 1987, and April 1987 to May 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In December 2014, the Board remanded this matter to schedule the Veteran for a hearing before the Board. In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. 

In April 2016 and October 2017, the Board remanded for further development. The matter has been returned to the Board.


FINDING OF FACT

For the entire appeal period, the preponderance of the evidence showed forward flexion of the cervical spine was limited to 15 degrees or less, without ankylosis, favorable or unfavorable, of the cervical spine or the entire spine and headaches that did not cause incapacitation.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. 

The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran seeks an increased rating for service-connected degenerative disc disease of the cervical spine with headaches.

Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which applies to Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. The following evaluations are to be assigned for spinal disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 

A 20 percent evaluation will be assigned for a cervical spine disability where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion (ROM) 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 evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 

The General Rating Formula for Diseases and Injuries of the Spine specifies that the above evaluations are for limitation of range of motion with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It also specifies that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal combined range of motion of the cervical spine is 340 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Note (3). The term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation;" provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Notes (2) and (4). Finally, associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Note (1).

The Veteran contends that his degenerative disc disease of the cervical spine with headaches is worse.

December 2006 private treatment records show complaints of neck pain and stiffness, very tight muscles, neck feeling out of place, pinched nerve in the neck felt especially when he tried to turn his head, severe migraine headache and pain in the back of the head. On physical examination, active range of motion was limited by 60 percent in flexion, extension, right and left rotation, and right lateral flexion. There was a 50% decrease in left lateral flexion. There was pain and stiffness. Axial compression and maximal cervical compression tests were positive bilaterally. Cervical distraction and shoulder compression tests were positive bilaterally. Palpation revealed +3 tenderness, trigger points, and spasm in cervical musculature and all trapezius muscles bilaterally. All upper deep tendon reflexes were rated +2 bilaterally, except C5 which was +1 bilaterally. All upper myotomes were rated 5/5 bilaterally. Myotomes in the neck were not tested due to severe pain. All upper body dermatomes were normal except right C5 which had hypoesthesia. Sprain/strain of the cervical spine was diagnosed.

The Veteran was afforded a VA examination in March 2007. The Veteran reported a stiff and weak neck. He also reported pain that occurred constantly. The pain traveled to the mid back between the shoulder blades and to the occipital area of the head. The pain was sharp and the pain level was a 10 out of 10. He could function without medication and was not receiving any treatment for the condition. It did not cause incapacitation. The functional impact was impairment of heavy lifting and carrying, pushing and pulling. 

On physical examination, the Veteran's posture and gait were within normal limits. There was no evidence of radiating pain on movement or muscle spasm. There was tenderness of the paracervical. There was no ankylosis of the cervical spine. Range of motion testing of the cervical spine revealed forward flexion to 45 degrees, with pain at 40 degrees; extension to 45 degrees, with pain at 30 degrees; right and left lateral flexion to 45 degrees, with pain at 40 degrees; and right and left rotation to 80 degrees, with pain at 60 degrees. Pain, fatigue, and lack of endurance additionally limited flexion and extension by five degrees after repetitive use. There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement. Motor and sensory function was within normal limits. Upper extremity reflexes were all 2+ bilaterally. The examiner continued the diagnosis of degenerative disc disease, cervical spine with headaches.

Several letters were received from the Veteran's neighbors and former co-workers that addressed the severity of the Veteran's back pain and the physical limitations it imposed on his life. Most of these observations seem to signify symptomatology of the Veteran's lower back condition, and do not pertain to his cervical spine disability. See January 2008 letter from E.M., February 2008 letter from M.M, June 2008 letter from M.S., and June 2008 letter from S.V.

A March 2010 private treatment record showed the Veteran fell down stairs and as a result sprained his neck and sustained other injuries. However, a February 2016 letter from Dr. E.C. noted that the Veteran's back pain was from the 1988 accident, and not the result of a more recent injury.

An April 2013 private treatment record showed the Veteran reported for two months he had noticed his hands would go numb while watching television or at night. He shook his hands to improve the condition. On physical examination, upper extremity strength was 5/5. There was numbness of skin in the upper extremities. The etiology was unclear, but it was noted that it could be due to the cervical spine.

During the November 2015 Board hearing, the Veteran testified that he had pain in his neck and reduced range of motion. Tr., p. 6. The Veteran testified that he could no longer drive or turn around. Tr., pp. 5-6. He experienced daily headaches. Tr., p. 13. He had trouble sleeping. Tr., p. 15. The Veteran testified that he retired in August 2013 because the pain of his entire back interfered with his ability to perform his job. Tr., p. 14.

A January 2017 VA examination noted the Veteran did not have any symptoms attributable to any peripheral nerve conditions of the upper extremities. The examiner also noted that no upper extremity nerves and radicular groups were affected. 

The Veteran was afforded another VA examination in May 2017. The Veteran reported posterior cervical neck pain that did not radiate. He did not report flare-ups. He reported functional loss evidenced by avoidance of driving because of worsening neck pain due to the rotation of his neck. The examiner noted that repetitive overhead lifting or repetitive neck rotation was limited by neck pain.

On physical examination, range of motion testing revealed forward flexion of the cervical spine from 10 to 25 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 30 degrees. The range of motion itself did not contribute to functional loss, but pain noted on examination in forward flexion and extension was noted to cause functional loss. There was evidence of pain with weight-bearing and objective evidence of pain on palpation to the cervical neck. Repetitive use testing did not result in additional loss of function or range of motion. The Veteran reported pain, weakness, or fatigability could significantly limit functional ability; however, the examiner was unable to quantify the degree of range of motion loss as the estimated range of motion was highly variable due to multiple subjective and un-measurable factors such as severity of pain, weakness, repetitive use, pain medication use, psychological, motivational and compliance factors as well as individual pain tolerance. The examiner further noted it would be purely speculative to quantify range of motion loss that may or may not occur. Muscle spasm and guarding were present, but did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was all 5/5. There was no muscle atrophy. Deep tendon reflexes were all 2+. Sensation to light touch was all normal and three were no signs or symptoms of radiculopathy. There was no ankylosis of the spine. There were no other neurologic abnormalities related to the cervical spine. There was no IVDS of the cervical spine.

The Board notes the Veteran failed to report for his VA examinations scheduled in December 2017 without good cause. He has not provided any explanation as to why he failed to report for these examinations. As the AOJ noted in the January 2018 Supplemental Statement of the Case, evidence which was to be obtained at these examinations regarding the nature and severity of the Veteran's degenerative disc disease of the cervical spine with headaches could not be obtained. In this regard, the Board notes that the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Because the Veteran failed to report for VA examinations in December 2017 without good cause, another examination is not required and his increased rating claim for degenerative disc disease of the cervical spine with headaches will be adjudicated on the evidence of record. See also 38 C.F.R. §§ 3.655 (a)-(b) (2017).

In consideration of the medical evidence of record under the laws and regulation as set forth above, the Board finds that the Veteran's service-connected degenerative joint disease of the cervical spine does not warrant a rating in excess of 20 percent at any point during the pendency of the appeal. 

The Board notes at the outset that there is no evidence at any time for ankylosis, favorable or unfavorable, of the cervical spine or the entire spine. VA examiners in March 2007 and May 2017 have specifically denied the presence of any ankylosis. Further, the Board notes that at no time during the appeal period was the Veteran's forward flexion at 15 degrees or less, even considering additional functional limitation due to pain, repetition, weakness, incoordination or fatigue. The range of motion testing conducted by the March 2007 examiner revealed forward flexion at 40 degrees with pain, and after repetitive use forward flexion was limited an additional five degrees. The May 2017 examination revealed forward flexion from 10 to 25 degrees, and repetitive use testing did not result in additional limitation of range of motion. In order to warrant a rating in excess of 20 percent, the preponderance of the evidence must show cervical forward flexion of 15 degrees or less. Thus, a rating of 30 percent is not warranted at any time during the appeal period. 

The Board has also considered whether a higher rating is warranted under Diagnostic Code 5235 to 5243. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 and Note (1). However, the Board notes that the evidence does not show any impairment other than that which has already been granted service connection. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 and Note (1). As such, a separate rating for impairment is not warranted. 

As the service-connected cervical spine disability specifically includes disc pathology, the Board is required to consider adjudicating it under the criteria for intervertebral disc syndrome (IVDS). Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Under Diagnostic Code 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 and Note. Under the IVDS formula, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A rating of 20 percent is warranted where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, the Veteran reported to the March 2007 VA examiner that his degenerative disc disease of the cervical spine with headaches did not cause incapacitation. The May 2017 examiner noted the Veteran did not have IVDS of the cervical spine. Thus, no compensable rating is available under Diagnostic Code 5243.

In conclusion, the Board finds that the Veteran's cervical spine disability does not warrant a rating in excess of 20 percent at any time. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.


ORDER

A rating in excess of 20 percent for degenerative disc disease of the cervical spine with headaches is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs