Citation Nr: 1817204	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  12-24 041	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial evaluation greater than 20 percent for multi-level cervical disc disease and degenerative joint disease, status post cervical fusion due to Ehlers Danlos Syndrome (cervical spine disability).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Garcia, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from September 1984 to February 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In March 2015, the Board denied entitlement to an initial evaluation greater than 20 percent for cervical spine disability.  The Veteran thereafter appealed the March 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  By Order dated October 20, 2016, the Court vacated and remanded that part of the Board's March 2015 decision that denied entitlement to an initial evaluation greater than 20 percent for cervical spine disability for action consistent with the terms of the Court's decision.

In May 2017, this matter was remanded for further development.  The case is once again before the Board.

The Board also notes that additional a march 2018 VA examination report has been associated with the file subsequent to the October 2017 supplemental statement of the case. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary.  See 38 C.F.R. § 20.1304(c).

The Board also notes that the Veteran submitted a timely notice of disagreement (NOD) with a June 2017 rating decision, denying entitlement to specially adapted housing and special home adaptation.  See August 2017 NOD.  However, the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of that NOD and is processing that appeal.  Therefore, a remand for the issuance of a statement of the case (SOC) is not required at this time.  See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC).


FINDING OF FACT

The Veteran's cervical spine disability is manifested by additional functional loss due to pain and weakness, and therefore, more closely approximates forward flexion of the cervical spine 15 degrees or less or favorable ankyloses of the entire cervical spine.


CONCLUSION OF LAW

The criteria for an initial evaluation of 30 percent, but no higher, for multi-level cervical disc disease and degenerative joint disease, status post cervical fusion due to Ehlers Danlos Syndrome, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Law

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017).  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155 (2012).  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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.

The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankyloses of the entire cervical spine.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a. 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a.

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 specifically contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified that 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 v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, 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.  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.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, Note 6.  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  38 C.F.R. § 4.71a.  A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Id.  A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Id.  A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Id.

III.  Analysis

The Veteran and his representative have asserted that his cervical spine disability warrants an increased rating, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.

On January 21, 2010, the Veteran filed a claim of entitlement to service connection for a cervical spine disability.  In June 2010, the RO assigned a disability rating of 20 percent for his cervical spine disability under Diagnostic Code 5242 from January 21, 2010, date of receipt of claim, to February 10, 2010.  An evaluation of 100 percent was assigned effective February 11, 2010 based on surgical or other treatment necessitating convalescence.  A 20 percent evaluation was assigned effective April 1, 2010.  The Veteran timely filed his notice of disagreement in October 2010 and timely filed a substantive appeal in August 2012.  Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date the claim was filed, the period beginning January 21, 2010.  Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2017).

VA treatment records dated in January 2010 note complaints of neck pain that increased when the Veteran moved his neck to the right.  An MRI revealed new myelomalacia and cord changes from degenerative disc disease noted.  A February 2010 note revealed decreased tenderness on palpitation in upper back.  The Veteran underwent an anterior cervical discectomy at C3-4 and C4-5 with an anterior arthrodesis.  See February 2010 VA treatment records.  Diagnosis was cervical stenosis with myelopathy.

A VA spine examination was conducted in May 2010.  Flexion was 0 to 25 degrees, extension was 0 to 15 degrees, left lateral flexion  0 to 10 degrees, left lateral rotation 0 to 40 degrees, right lateral flexion 0 to 10 degrees, and right lateral rotation 0 to 45 degrees.  The examiner noted objective evidence of pain on active range of motion and with repetitive motion, though no additional limitation of motion.  An incapacitating episode due to the Veteran's cervical spine surgery in February 2010 was noted.  The examiner diagnosed multilevel cervical disc disease and degenerative joint disease, status post two cervical fusions.

The report notes that the Veteran had continued neck pain with sensory symptoms in all extremities and variable weakness.  The Veteran reported numbness, fatigue, decreased motion, stiffness, weakness, pain, and spasms.  The Veteran noted flare-ups three times a week precipitated by sleep position.  He reported a 90 percent reduction in range of motion and function at first which gradually improves.  On examination, no ankylosis was noted.  The examiner noted guarding, pain with motion, tenderness, and weakness with no spasms or atrophy.  The examiner noted that the Veteran's guarding was not severe enough to result in abnormal gait or spinal contour.  The VA examiner found the Veteran to have IVDS with an incapacitating episode following his cervical spine surgery.  The Board notes that he was awarded a temporary, total rating, as discussed above.

In his September 2010 NOD, the Veteran reported constant burning and "knife-like pain."  He noted that forward flexion measurements were more limited than the May 2010 VA examination report noted.

A VA spine examination was conducted in June 2012.  Forward flexion was 0 to 30 degrees, extension 0 to 10 degrees, right lateral flexion 0 to 0 degrees, left lateral flexion 0 to 0 degrees, right lateral rotation 0 to 45 degrees, and left lateral rotation 0 to 60 degrees.  The Veteran reported flare-ups due to prolonged overhead looking.  The examiner found no objective evidence of painful motion.  On repetitive-use testing, no further limitation of motion was noted.  The examiner noted the following functional loss or impairment with repetitive-use testing:  less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, and disturbance of locomotion.  Localized tenderness or pain to palpitation of the cervical spine was noted.  The examiner noted guarding or muscle spasms but these did not result in abnormal gait or spinal contour.  The examiner noted no muscle atrophy.  While the Veteran was found to have IVDS, the examiner noted no incapacitating episodes.

In his August 2012 substantive appeal, the Veteran reported diminished range of motion with repetitive movements and fatigue.  He indicated that, as a result of his cervical fusion, he had ankylosis and lack of movement.

In a November 2014 VA examination report, the VA examiner noted a diagnosis of degenerative arthritis of the cervical spine with residual headaches when turning his head the wrong way and diminished sensation of the long and ring fingers of the left hand.  The Veteran reported limited mobility of his neck and numbness in the fingers on his left hand.  The Veteran reported flare-ups resulting in his not being able to move his neck.  He further noted that repetitive motion, such as looking up and down or side to side during a normal work day, is not bothersome unless he makes a "wrong movement."  He noted that such movements cause further limitation of motion.

Range of motion testing revealed flexion to 30 degrees with evidence of painful motion at 30 degrees; extension to 20 degrees with evidence of painful motion at 20 degrees; right lateral flexion to 10 degrees with evidence of painful motion at 10 degrees; left lateral flexion to 20 degrees with evidence of painful motion at 20 degrees; right lateral rotation to 30 degrees with evidence of painful motion at 30 degrees; and left lateral rotation at 50 degrees with evidence of painful motion at 50 degrees.  The examiner noted no further limitation of motion with repetitive-use testing.  The examiner noted tenderness or pain to palpitation of the cervical spine with no muscle spasm, guarding, or muscle atrophy.  No ankylosis was noted.  The examiner found that the Veteran did not have IVDS.  The examiner noted that the Veteran had not complained of neck pain or been treated for neck pain since 2013.

The Board notes that because the 2010, 2012, and 2014 VA examinations did not adequately address additional functional loss or limitation of motion during flare-ups, the Court vacated and remanded the Board's March 2015 decision with respect to this claim.

Consequently, another VA neck examination was conducted in July 2017.  Range of motion testing revealed forward flexion from 0 to 25 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 15 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees.  These measurements then correspond to a combined range of motion of 85 degrees, and the examiner reports that there is no ankylosis.  The examiner reports that there is intervertebral disc syndrome (IVDS); however, there have been no periods of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician.  See July 2017 VA examination.

The Veteran was previously assigned a 20 percent rating based on forward flexion of the cervical spine of greater than 15 degrees but not greater than 30 degrees, as reported in a November 2014 VA examination.  See June 2010 rating decision.  Based on the findings reported in the July 2017 VA neck examination, the Veteran's cervical spine disorder has not worsened so as to support a rating in excess of 20 percent under the mechanical application of the General Rating Formula for Diseases and Injuries of the Spine.

However, the Veteran is entitled to a higher rating under DeLuca.  The July 2017 VA neck examiner states that pain causes functional loss and that the Veteran's neck disorder "affects turning of his head[,] cannot look upward[,] pretty much drinks by leaning his upper body all the way back[,] affects looking right to left."  The VA examiner also noted that the Veteran's forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all exhibited pain.  The VA examiner noted pain with weight bearing and localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine.  The Veteran is able to perform repetitive use testing with at least three repetitions but with additional loss of function or range of motion after three repetitions due to pain.  Under such circumstances, an increased rating under DeLuca is warranted.  

However, the Board notes that the medical evidence of record does not show that the Veteran has unfavorable ankylosis of the entire cervical spine or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Therefore, a 40 percent disability rating for his cervical spine disability is not warranted.

Additionally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected cervical spine disability, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board.

Under the schedular criteria, in addition to considering the orthopedic manifestations of a back disability, consideration must be given to any objective neurologic abnormalities associated with the back disability, which are to be evaluated separately under an appropriate diagnostic code.  See Note (1) of the 'General Rating Formula for Disease and Injuries of the Spine.'  Such neurologic abnormalities include, but are not limited to, bowel or bladder impairment.  Id.  The note directs VA to consider whether combining ratings for orthopedic and neurological manifestations of the cervical spine disability would result in a higher rating.  

The July 2017 VA examiner diagnosed the Veteran with mild radicular findings on exam of the right upper extremity and moderate radiculopathy of the left upper extremity.   The Board notes that the Veteran is already in receipt of a 30 percent disability rating for severe incomplete paralysis of the left upper extremity and in receipt of a 20 percent disability rating for radiculopathy of the right upper extremity.  Additionally, as noted by the July 2017 VA examiner, the Veteran did not have any additional neurologic abnormalities or findings related to his cervical spine condition.  Therefore, the Veteran has not been shown to manifest any additional neurological abnormalities associated with his cervical spine disability that he has not already been compensated for.  As such, additional disability ratings based on neurological abnormalities are not warranted.

Additionally, the Board acknowledges that VA examination reports noted a scar on the Veteran's anterior neck that was 13.0 cm by .1 cm.  The Board recognizes that, under certain circumstances, assigning a separate rating for a scar would not violate the rule against pyramiding.  Esteban v. Brown, 6 Vet. App. 259 (1994).  Nevertheless, as stated in the July 2017 VA examination report, the Veteran's scars have not been shown to be at least 39 square centimeters, painful and/or unstable.  Therefore, the Board finds that the relevant diagnostic criteria do not provide for a separate compensable rating for that manifestation of the Veteran's cervical spine disability.  38 C.F.R. § 4.118, DCs 7801, 7802, 7804.

Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral.  Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).

Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that he is entitled to an increased rating.  Accordingly, the Board finds that an initial evaluation of 30 percent, but no greater, for cervical spine disability, is warranted throughout the appeal period.


ORDER

Throughout the appeal period, entitlement to an initial evaluation of 30 percent, but no greater, for cervical spine disability is granted, subject to the law and regulations governing the payment of monetary benefits.




____________________________________________
A.J. Spector
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs