Citation Nr: 1817128 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-40 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating in excess of 10 percent for cervical strain with cervical degenerative disease (previously rated as cervical strain). 2. Entitlement to an increased rating in excess of 20 percent prior to September 8, 2017 and in excess of 30 percent from September 18, 2017 for cervical strain with cervical degenerative disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Brozyna, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to April 1992, and again from February 2002 to December 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 initial rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for cervical strain with an evaluation of 10 percent, effective January 1, 2008. During the pendency of the appeal, the Waco, Texas, RO issued a March 2016 rating decision, which increased the Veteran's disability rating from 10 percent to 20 percent for his service-connected cervical strain, effective January 31, 2013. Subsequently, the RO issued a December 2017 rating decision, which increased the Veteran's service connected cervical strain with cervical degenerative disease (previously rated as cervical strain), from 20 percent to 30 percent, effective September 18, 2017. On her September 2010 VA Form 9, the Veteran requested a Board hearing. The hearing was scheduled for May 2017. The Veteran was determined to be a no-show for that hearing. To date, she has not requested a new Board hearing. Accordingly, the Board considers her hearing request to be withdrawn. 38 C.F.R. § 20.704 (d) (2017). This case was before the Board in August 2017 for additional development. It was remanded to the agency of original jurisdiction (AOJ) for additional development. The Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 147 (1999). FINDINGS OF FACT 1. The record shows that prior to November 19, 2009, the service-connected cervical strain with cervical degenerative disease has been manifested by some limitation on motion and pain on movement. 2. For the period beginning on November 19, 2009 through September 8, 2017, the service-connected cervical strain with cervical degenerative disease has been manifested by an increase in limitation on motion, pain on movement with functional loss, and guarding or muscle spasm that was severe enough to result in abnormal spinal contour. 3. For the period beginning on September 18th, 2017, the Veteran's service-connected cervical strain with cervical degenerative disease has been manifested by a greater increase in limitation on motion. It was not productive of unfavorable ankylosis of the entire cervical spine or the entire spine; or, incapacitating episodes, or bowel or bladder impairment attributable to the cervical strain with cervical degenerative disease. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating in excess of 10 percent for cervical strain with cervical degenerative disease (previously rated as cervical strain) has not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for the award of a 20 percent disability rating for service-connected cervical strain with cervical degenerative disease has been met effective November 19, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in in excess of 20 percent prior to September 8, 2017 and in excess of 30 percent from September 18, 2017 for cervical strain with cervical degenerative disease has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 U.S.C. § 3.159. Neither the Veteran nor his attorney 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). II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period 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). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also observes that disability of the musculoskeletal system is 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, supra. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Cervical strain with cervical degenerative disease The Veteran seeks a higher initial rating for her service-connected cervical strain with cervical degenerative disease initially rated at 10 percent effective January 1, 2008. She also seeks an increased rating in excess of 20 percent prior to September 8, 2017 and in excess of 30 percent from September 18, 2017. The Veteran's cervical strain with cervical degenerative disease is rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.71a. A 10 percent rating is warranted 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. A 20 percent rating is warranted 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 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 rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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 stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The VA has acknowledged the Veteran's in-service neck injury via the grant of service-connection for cervical strain from January 2008. The claim now comes before the Board through a January 2009 initial increased rating claim. See January 2009 statement in support of claim. As noted above, disability evaluations are based upon symptoms demonstrated in the evidence during the periods of the claim. The Board has reviewed the Veteran's statements from both her and her representative, VA examination reports, and treatment records for evidence of symptoms related to her cervical strain with cervical degenerative disease. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). The Board finds that the November 19, 2009 VA treatment record indicating a full ROM for the Veteran's cervical spine except for flexion at ~ 30 degrees meets the 20% rating requirement. The Board also finds that a preponderance of the evidence is against an increase to the initial rating in excess of 10 percent, an increased rating in excess of 20 percent prior to September 8, 2017, and an increased rating in excess of 30 percent from September 18, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board grants an effective date of November 19, 2009, for the award of a 20 percent disability rating for service-connected cervical strain with cervical degenerative disease is granted. Beginning with the Veteran's statements, the Veteran through her January 2018 brief, disagrees with her initial assigned disability rating for her service-connected cervical strain. She notes that she her symptoms of daily painful motions have increased in severity and interfere with her daily activities. She also argues that she is entitled to a rating in excess of 20 percent, prior to September 8, 2017, because she exudes symptoms of guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Likewise, she argues that she is entitled a rating in excess of 30 percent because her disability picture is worse than currently related, her range of motion has severely worsened, and her disabilities interfere with her daily activities. To that end, she requests that painful motion and functional loss be considered as required. The Veteran has previously noted that her neck pain worsened after she was deployed to Iraq in 2004 and she has a history of chronic pain with cervical degenerative disk disease. See, e.g., November 2009 and December 2010 VA medical treatment records. The Board finds that the Veteran is competent to report experiencing cervical pain and daily painful motions, which have increased in severity and interfere with her daily activities, as they are within the realm of her personal experience. 38 C.F.R. § 3.159; See Layno v. Brown, 6 Vet.App. 465, 469-71 (1994). Her report regarding cervical pain, daily painful motions which have increased in severity and interfere with her daily activities, are credible and probative, as they are internally consistent and consistent with contemporaneous medical records. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran might sincerely believe that to be the case, as a layperson, she is not competent to provide an opinion concerning entitlement to an increased rating due to her opinion that she exudes symptoms of guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Likewise, she is not competent to provide an opinion on whether she is entitled to a higher rating in a complex matter such as this, because she opined her disability picture is worse than currently related, her range of motion has severely worsened, and her disabilities interfere with her daily activities. Turning to the medical evidence, a May 2008 VA Neck (Cervical Spine) examination indicated normal symmetry and no ankylosis. The examiner reported the following initial ranges of motion ranges of motion (ROM) of the cervical spine: forward flexion 30 degrees without pain and 30 to 40 degrees with pain, backward extension 20 degrees without pain and 20 to 30 degrees with pain, lateral flexion to the left 20 degrees without pain and 20 to 40 degrees with pain, lateral flexion to the right 30 degrees without pain and 30 to 45 degrees with pain, rotation to the left 60 degrees without pain and 60 to 70 degrees with pain, and rotation to the right 50 degrees without pain and 50 to 80 degrees with pain. The examiner noted after repetitive forward flexion, backward extension, lateral flexion left and right, and rotation left and right times 5 testing for pain, weakness, fatigability, and incoordination showed no change with the same ROM as above but with increased pain noted on exam. He noted the Veteran denied any periods of flare-up and indicated her neck pains were chronic. Also in May 2008, a radiologist indicated that the Veteran's cervical spine showed no significant bony abnormality. In a December 2008 Form 1902B the checkbox for slow and uneven gait was not selected as having been observed. In an August 2009 MRI of the cervical spine revealed a normal craniovertebral junction, minimal straightening and reversal of normal cervical lordotic curvature, and degenerative changes in the cervical vertebral bodies with osteophytes. In another August 2009 VA treatment record it was noted that the Veteran's balance/gait was absent of Rhomberg Absent, was symmetrical gait, and that she was able to walk on heels, toes, and tandem walk with mild pain into back/hip area. In addition, an August 2009 treatment record indicated the Veteran had no loss of bladder/bowel. In an August 2009 and September 2009 treatment record the Veteran's gait was noted to be "0" normal gait. In an October 2009 VA treatment record pain on the cervical paraspinal muscles was noted. In another October 2009 VA treatment record noted the Veteran's gait was independent without an assistive device in regular surface. A November 19, 2009 VA treatment record indicated a full ROM for the Veteran's cervical spine except for flexion at ~ 30 degrees. This record noted that the Veteran had an October 2009 UE EMG which revealed no evidence of cervical radiculopathy or Brachial Plexopathy. In addition, this record contained an assessment noting chronic pain/cervical DDD with Lumbago and an instruction to continue physical therapy for cervical therapy with Aqua Therapy. Another contemporaneous November 2009 VA treatment record indicated the Veteran's gait was independent, fluid, and smooth without ad [assistive device] in regular surface, normal pattern, adequate stride and cadence, and good foot clearance. In a December 2009 treatment record the Veteran's gait was noted to be "0" normal gait. A January 2010 VA treatment record indicated the Veteran's gait was independent without an Ad [assistive device] in all surfaces and normal pattern. It further noted muscle spasm on cervical paraspinal muscles but no mention of abnormal gait or abnormal spinal contour. In a March 2010 treatment record the Veteran's gait was noted to be "0" normal gait. In August 2011 an AP and lateral views of the cervical spine revealed no bone joint or soft tissue abnormality with a notation that the cervical spine was normal in appearance. In January 2013 a VA Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) indicated the Veteran had a diagnosis of chronic cervical strain (2002) and IVDS, cervical spine with radiculopathy. The Veteran stated in her medical history that she fell off a 5-ton truck in April 2002 while she was stationed in New York, hit the back of her head without a helmet, passed out, and injured her neck. She reported having flare-ups 3-4 times a month, lasting more than 3 days each time, and noted these flare-ups resulted in a 60 percent reduction from her current baseline. The January 2013 examiner reported the following initial ROMs of the cervical spine: forward flexion 20 degrees with objective evidence of painful motion at 20 degrees, extension at 20 degrees with objective evidence of painful motion at 20 degrees, right lateral flexion 20 degrees with objective evidence of painful motion at 20 degrees, left lateral flexion 10 degrees with objective evidence of painful motion at 10 degrees, right lateral rotation 40 degrees with objective evidence of painful motion at 40 degrees, and left lateral rotation 20 degrees with objective evidence of painful motion at 20 degrees. Next, the examiner reported the following ROMs after repetitive use testing of the cervical spine: forward flexion 20 degrees, extension at 15 degrees, right lateral flexion 15 degrees, left lateral flexion 10 degrees, right lateral rotation 15 degrees, and left lateral rotation 15 degrees. The examiner noted the Veteran had additional limitations in ROM of the cervical spine (neck) following repetitive-use testing and had functional loss and/or functional impairment of the cervical spine (neck). The contributing factors of her functional loss, functional impairment, and/or additional limitation of ROM included: less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. Further, the above examiner noted the Veteran had localized tenderness or pain to palpation for joins/soft tissue of the cervical spine (neck), guarding or muscle spasm, that was severe enough to result in abnormal spinal contour. In addition it was noted that the Veteran did not have any neurologic abnormalities related to her cervical spine (neck) condition (such as bowel or bladder problems due to cervical myelopathy). As for IVDS, the examiner indicated the Veteran had IVDS, with incapacitating episodes over the past 12 months for a duration of less than 1 week. The examiner noted that the Veteran's cervical spine (neck) condition, does not result in a functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner opined the Veteran's cervical spine (neck) condition impacts her ability to work noting that she can only lift 15 pounds x 2, walk 50 feet during a flare up and 30 minutes during a non-flare up, walk 1 hour during an 8 hour day, stand for 10 minutes and sit for 30 minutes at a time, and can stand for 1 hour and sit for 7 hours during an 8 hour work day. The examiner concluded that the Veteran would undergo a 60 percent reduction from her current baseline during flare-ups or when the joint is used repeatedly over a period of time. In a June 2013 Post Traumatic Stress Disorder DBQ the Veteran's gait and posture were noted as unremarkable. A July 2013 MRI of the cervical spine revealed mild degenerative changes of the cervical spine without significant neuroforaminal or thecal sac narrowing. A May 2015 cervical MRI at a VA chiropractor consult indicated the Veteran's alignment and vertebral body heights were maintained. Bone marrow signal was within normal limits and the spinal cord signal was unremarkable. Disc desiccation was identified throughout the cervical spine and degenerative anterior osteophyte formation was noted at C5-C6. The consult concluded with an impression of multilevel cervical spondylosis, without significant thecal sac or neural foraminal stenosis. A July 2015 VA treatment record noted the Veteran had right cervical spasm and pain. In an August 2017 treatment note, the provider indicated no for "Ambulates with unsteady gait and no assistance". A September 2017 VA examination indicated the Veteran had a diagnosis of chronic cervical strain (2002) with cervical degenerative disease (2007). While the Veteran reported that she had no flare-ups of the cervical spine; she reported having functional loss or functional impairment of the cervical spine (neck) (regardless of repetitive use). ROM was reported as the following: forward flexion 0 to 15 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 20 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 40 degrees, and left lateral rotation 0 to 20 degrees. The examiner noted the Veteran was unable to engage in overhead work. He also noted she had pain on examination with functional loss and pain exhibited in all of the above ROMs. Furthermore, the examiner noted evidence of pain with weight bearing and indicated there is objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the cervical spine (neck) noting bilateral posterior neck tenderness bilaterally, worse on the right. Next, the September 2017 VA examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. He also noted that he was unable to opine on whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time without mere speculation. The examiner provided rationale noting flare-up of the Veteran's neck condition was not present at the time of examination. He further noted that in absence of the Veteran's flare-up at examination, or after repeated use over time, it would be mere speculation to express in terms of the degrees of additional ROM loss due to pain, weakness, fatigability, or incoordination. The examiner noted the Veteran did not have guarding, or muscle spans of the cervical spine, but noted the Veteran had additional contributing factors of disability and noted less movement due to pain and adhesions, and increased pain with lifting and overhead work. The above examiner further noted the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, no ankylosis of the spine, no other neurologic abnormalities (such as bowel or bladder problems due to cervical myelopathy), no IVDS, and that her cervical spine condition does not have a functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Imaging studies were noted to document arthritis (degenerative joint disease (DJD)) and the examiner indicated that DJD was on imaging while in active service and within a year of discharge. The examiner indicated that the Veteran's cervical spine would impact her ability to work as she is unable to engage in repetitive lifting and overhead work. The examiner concluded that there is evidence of pain on passive ROM Testing and when the joint is used in non-weight bearing. The examiner opined that it is at least as likely as not that the Veteran's cervical degenerative disease was caused by, aggravated by and the result of active military service. His rationale was that the Veteran's cervical degenerative disease was found on imaging while in active military service and it was confirmed on two occasions within a year of her discharge from service. He further noted that cervical degenerative disease can be found in the majority of individuals by age 40 years and that the Veteran was over 40 years old at the time of discharge in 2007. He concluded that the current cervical degenerative disease is the continuation of the condition first noted in active military service. III. Initial Rating of 10 percent effective January 1, 2008 In the present cases, there is no evidence to warrant an increased initial rating of 10 percent effective January 1, 2008. Specifically, there was no evidence of 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. Nor was there evidence of forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine. The May 2008 VA Neck (Cervical Spine) examination indicated normal symmetry and no ankylosis. The examiner reported forward flexion 30 degrees without pain and 30 to 40 degrees with pain, backward extension 20 degrees without pain and 20 to 30 degrees with pain, lateral flexion to the left 20 degrees without pain and 20 to 40 degrees with pain, lateral flexion to the right 30 degrees without pain and 30 to 45 degrees with pain, rotation to the left 60 degrees without pain and 60 to 70 degrees with pain, and rotation to the right 50 degrees without pain and 50 to 80 degrees with pain. He noted the Veteran denied any periods of flare-up and indicated her neck pains were chronic. In addition, as indicated in the foregoing, the evidence of record related to this rating period generally indicated reports of chronic neck pain, abnormal ROMs, and the Veteran contends in her January 2018 brief that her symptoms of daily painful motions have increased in severity and interfere with her daily activities. Further, the clinical evidence does not establish and the Veteran has not alleged, that her cervical strain with cervical degenerative disease was ankylosed or that she experienced such symptoms as difficulty talking due to limited line of vision, difficulty breathing or eating, atlantoaxial or cervical subluxation or dislocation, or nerve root stretching, as is required for unfavorable ankylosis for VA compensation purposes. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under these circumstances, an initial compensable rating in excess of 10 percent for cervical strain with cervical degenerative disease is not warranted. IV. Increased Rating in excess of 20 percent prior to September 8th, 2017 Based on the foregoing, the Board finds the appropriate effective date for the Veteran's 20 percent rating for her service-connected cervical strain with cervical degenerative disease is November 19, 2009. Prior to November 19, 2009, there is no evidence of 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; forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine. In addition, as indicated in the foregoing, the evidence of record prior to November 19, 2009, generally indicated reports of chronic neck pain, abnormal ROMs. The Veteran contended in her January 2018 brief that her symptoms of daily painful motions have increased in severity and interfere with her daily activities and she exuded symptoms of guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Prior to November 19, 2009, the clinical records generally reflected the Veteran's gait was normal, symmetrical, and independent without an assistive device, and noted that Rhomberg was absent. In addition, the cervical spine was noted to have minimal straightening and reversal of normal cervical lordotic curvatures, and degenerative changes in the cervical bodies with osteophytes. Further, pain was indicated on the paraspinal muscles. That said, on November 19, 2009 a VA treatment record indicated a full ROM for the Veteran's cervical spine except for flexion at 30 degrees. The Board finds this evidence satisfies the 20 percent rating requirement for the Veteran's cervical strain with cervical degenerative disease, which requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Subsequent to November 19, 2009 and prior to September 8th, 2017, there is no evidence of forward flexion of 15 degrees or less; or, favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine. As indicated in the foregoing, the evidence of record prior to September 8th, 2017, continued to generally indicate reports of chronic neck pain, abnormal ROMs, with the Veteran contending in her January 2018 brief that her symptoms of daily painful motions have increased in severity and interfere with her daily activities and that she exuded symptoms of guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Again, the clinical records generally reflected the Veteran's gait was normal, symmetrical, and independent without an assistive device, and noted that Rhomberg was absent. In addition, the cervical spine was noted to have minimal straightening and reversal of normal cervical lordotic curvatures, and degenerative changes in the cervical bodies with osteophytes. In January 2013 a VA Neck (Cervical Spine) Conditions DBQ indicated the Veteran had a diagnosis of chronic cervical strain (2002) and IVDS, cervical spine with radiculopathy, and noted forward flexion was 20 degrees with objective evidence of painful motion at 20 degrees, and additional limitations in ROM of the cervical spine (neck) following repetitive-use testing with functional loss and/or functional impairment of the cervical spine (neck). Based on this examination, the RO in March 2016, increased the Veteran's rating to 20 percent for her cervical strain with cervical degenerative disease, effective January 31, 2013. Following the above January 2013 exam, the clinical records through September 8th, 2017 continued to indicate a normal gait, and noted mild degenerative changes, multilevel cervical spondylosis, without significant thecal sac or neural foraminal stenosis, and the Veteran having a right cervical spasm and pain. A September 2017 VA examination indicated the Veteran had a forward flexion of 0 to 15 degrees, pain on examination with functional loss and pain exhibited in all of the tested ROMs, pain with weight bearing, localized tenderness or pain on palpitation of the joint or associated soft tissue of the cervical spine (neck) with bilateral posterior neck tenderness bilaterally, worse on the right. The examiner further noted repetitive use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. He also noted the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, no ankylosis of the spine, no other neurologic abnormalities (such as bowel or bladder problems due to cervical myelopathy), no IVDS, and that his cervical spine condition did not have a functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Based on this examination, the RO in December 2017, increased the Veteran's rating to 30 percent for her cervical strain with cervical degenerative disease, effective September 18, 2017. Under these circumstances, the appropriate effective date for the Veteran's 20 percent rating for her service-connected cervical strain with cervical degenerative disease is November 19, 2009. In addition, based on the foregoing, an increased rating in excess of 20 percent prior to September 8th, 2017 is not warranted. V. Increased rating in excess of 30 percent beginning on September 18th, 2017 Based on the foregoing, there is no evidence to warrant an increased rating of 30 percent beginning September 18th, 2017. Specifically, there was no evidence of unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. The Veteran argues that she is entitled a rating in excess of 30 percent because her disability picture is worse than currently related, her range of motion has severely worsened, and her disabilities interfere with her daily activities. To that end, she requests that painful motion and functional loss be considered as required. A September 2017 VA examination indicated the Veteran did not have ankylosis of the spine, other neurologic abnormalities (such as bowel or bladder problems due to cervical myelopathy), did not have IVDS, and that her cervical spine condition did not have a functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner accounted for the Veteran's above future contentions and noted that the Veteran's ROM decreased and reported the following: forward flexion 0 to 15 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 20 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 40 degrees, and left lateral rotation 0 to 20 degrees. The examiner also noted the Veteran was unable to engage in repetitive lifting and overhead work. Painful motion and functional loss was discussed with the examiner noting pain on examination with functional loss and pain exhibited in all of the above ROMs. Furthermore, the examiner noted evidence of pain with weight bearing and indicated there is objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the cervical spine (neck) noting bilateral posterior neck tenderness bilaterally, worse on the right. Under these circumstances, a rating in excess of 30 percent beginning on September 18th, 2017 is not warranted for cervical strain with cervical degenerative disease. VI. Intervertebral disc syndrome The Board has also considered whether the Veteran's service-connected cervical with cervical degenerative disease has resulted in intervertebral disc syndrome (IVDS) with incapacitating episodes as contemplated under Diagnostic Code 5243. In this regard, the January 2013 VA examiner found the Veteran had incapacitating episodes over the past 12 months for a duration of less than 1 week and the September 2017 VA examiner noted the Veteran did not have IVDS. Based on the foregoing, a rating for IVDS is not warranted. See 38 C.F.R. § 4.25 (combined ratings table). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected cervical strain with cervical degenerative disease with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (providing ratings on the basis of ankylosis and limited flexion). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In this regard, the Veteran's 10 percent rating effective January 1, 2008, 20 percent rating effective November 19, 2009 (previously January 31, 2013), and 30 percent rating effective September 18, 2017, contemplate the functional limitations as well as pain caused by the Veteran's cervical strain with cervical degenerative disease disability. ORDER Entitlement to an initial compensable rating in excess of 10 percent for cervical strain with cervical degenerative disease (previously rated as cervical strain) is denied. Entitlement to an effective date of November 19, 2009, for the award of a 20 percent disability rating for service-connected cervical strain with cervical degenerative disease is granted. Entitlement to an increased rating in excess of 20 percent prior to September 8, 2017 and in excess of 30 percent from September 18, 2017 for cervical strain with cervical degenerative disease is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs