Citation Nr: 1817259 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 13-33 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 20 percent prior to September 30, 2013, a rating in excess of 30 percent from September 30, 2013, to March 22, 2017, and a rating in excess of 20 percent from March 23, 2017 for cervical spine degenerative joint disease. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and J.K. ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An October 2013 rating decision increased the evaluation for cervical spine arthritis to 30 percent, effective September 30, 2013. Additionally, an April 2017 rating decision decreased the evaluation for cervical spine arthritis to 20 percent, effective March 23, 2017. See generally 38 C.F.R. § 3.105(e) (2017) (for a change in an evaluation of a service-connected disability to be considered a reduction, the change in evaluation must also result in a reduction or discontinuance of compensation payments currently being made). As the RO did not assign the maximum disability ratings possible, the appeal for a higher evaluation for cervical spine arthritis remains before the Board and is recharacterized above. AB v. Brown, 6 Vet. App. 35 (1993). In November 2016, the Veteran testified at a Board hearing before the undersigned. A transcript of this hearing is associated with the record. The appeal was remanded in September 2017. FINDINGS OF FACT 1. The Veteran's cervical spine degenerative joint disease was manifested by forward flexion of the cervical spine greater than 15 degrees with no evidence of favorable ankylosis of the entire cervical spine prior to September 30, 2013. 2. Cervical spine degenerative joint disease was manifested by forward flexion of the cervical spine less than 15 degrees with no unfavorable ankylosis from September 30, 2013, to March 22, 2017. 3. Cervical spine degenerative joint disease has been manifested by forward flexion of the cervical spine greater than 15 degrees with no evidence of favorable ankylosis of the entire cervical spine since March 23, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for cervical spine degenerative joint disease have not been met prior to September 30, 2013. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2017). 2. The criteria for a rating in excess of 30 percent for cervical spine degenerative joint disease have not been met from September 30, 2013, to March 22, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. 3. The criteria for a rating in excess of 20 percent for cervical spine degenerative joint disease have not been met since March 23, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the Veteran asserted in a June 2012 notice of disagreement that a September 2011 examination was inadequate because repetitive range of motion testing was not completed, noting that his cervical spine range of motion was further limited after repetitive motion and he was only a few degrees short of a higher evaluation. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Board notes that the examiner provided range of motion measurements after repetitive motion and noted that there was pain but not additional loss of motion on the fifth range of motion test. Further the Veteran testified that a September 2013 VA examination was inadequate because the examiner did not speak to him or account for any limitation of motion caused by pain; additionally, the Veteran reported in a November 2013 VA Form 9 that he expressed to the examiner that repetitive motion caused pain even though the examiner noted the Veteran was unable to perform repetitive testing due to unknown reasons. The Board notes that the Veteran was afforded an additional examination in January 2015 that the Veteran indicated fairly assessed the level of severity of his symptomatology during that period of the appeal. See id. Concerning all range of motion findings of the cervical spine, the Board notes that the VA examination reports do not include passive range of motion and some do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Moreover, there is no indication on the VA examinations of record that range of motion testing was performed other than on weight-bearing; the March 2017 examination specifically notes that range of motion test results were performed on weight-bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's cervical spine arthritis is evaluated under Diagnostic Code 5242, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. A December 1980 rating decision granted service connection for residual fracture of the cervical vertebrae and assigned a noncompensable rating, effective June 1980. A June 2009 rating decision increased the rating for cervical spine arthritis to 20 percent, effective May 2008. In June 2011, the Veteran contended that his cervical spine disability worsened. The September 2011 rating decision on appeal continued the 20 percent evaluation. As noted above, an October 2013 rating decision granted a 30 percent evaluation, effective September 30, 2013, and an April 2017 rating decision decreased the evaluation to 20 percent, effective March 23, 2017. To warrant a higher evaluation prior to September 30, 2013, the evidence would need to demonstrate forward flexion of the cervical spine limited to 15 degrees or less or ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board finds the preponderance of the evidence against a finding that cervical spine arthritis warranted a rating in excess of 20 percent prior to September 30, 2013. Although an August 2011 examination noted favorable ankylosis of the cervical spine, the evidence does not demonstrate that the cervical spine was entirely ankylosed as forward flexion was possible to 18 degrees, with no additional loss of range of motion upon repetition. The Board notes the Veteran competently reported that his cervical spine disability resulted in pain, tenderness, weakness, and functional limitations that restrict physical activities prior to September 30, 2013. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the lay statements do not indicate that the Veteran has favorable ankylosis of the entire cervical spine or that forward flexion was limited to less than 15 degrees. As such, a rating in excess of 20 percent is not warranted. Further, the Board finds the preponderance of the evidence against a finding that the Veteran's cervical spine arthritis was manifested by unfavorable ankylosis of the entire cervical spine to warrant a higher evaluation from September 30, 2013, to March 23, 2017. The evidence does not demonstrate, nor does the Veteran contend that the entire cervical spine was fixed in unfavorable ankylosis. Specifically, a January 2015 examination indicated the cervical spine was virtually frozen, such that the Veteran turned his body en bloc to see in different directions. While the Veteran had no extension of the cervical spine, forward flexion was possible to five degrees and motion was present in right and left lateral flexion and right and left lateral rotation, ranging from 5 to 15 degrees. The examiner specifically stated that there was no ankylosis of the spine. The Veteran competently testified that his cervical spine arthritis resulted in pain, muscle spasms, stiffness, and that activities such as driving caused functional limitations of difficulty turning his head, bending, and prolonged sitting. However, although the Veteran reported that a September 2013 examination incorrectly documented pain with range of motion and upon repetition, he does not contend the entire cervical spine was unfavorably ankylosed. As the lay statements also do not indicate that the Veteran's cervical spine arthritis more nearly approximates unfavorable ankylosis of the entire cervical spine, a rating in excess of 30 percent is not warranted for this period. Finally, the preponderance of the evidence is also against a finding that cervical spine arthritis limits forward flexion to 15 degrees or less or is manifested by ankylosis of the entire cervical spine since March 23, 2017, to warrant a higher evaluation. Specifically, a March 2017 examination found forward flexion of the cervical spine to 30 degrees; the examiner noted pain on examination that did not result in additional functional loss and that repetitive use did not result in additional limitation of motion. Although the examiner noted guarding of the cervical spine due to pain and noted the Veteran maintained neck posture with limited movement and guarding throughout the examination, there is no indication that the functional loss resulted in flexion less than 15 degrees or favorable ankylosis of the entire cervical spine. The Board has also considered whether separate ratings could be assigned based on neurological symptomatology. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Board notes that a February 2015 rating decision assigned separate 20 percent evaluations for right and left upper extremity radiculopathy, effective January 29, 2015, based on evidence of radiculopathy at the January 2015 examination. The Board finds the preponderance of the evidence against a finding that the Veteran had bilateral upper extremity radiculopathy prior to January 29, 2015. Specifically, the August 2011 and September 2013 examination reported normal muscle strength, deep tendon reflexes, and sensory, with no reported radicular pain or other signs or symptoms of radiculopathy nor any other neurological abnormalities. Further, there is no evidence that the Veteran's cervical spine arthritis was productive of any other neurological abnormality during the entire period on appeal. The Board has also considered whether there is any other schedular basis for granting a higher rating but has found none. Although the Veteran asserted that he had headaches due to cervical spine arthritis, the issue of entitlement to service connection for headaches was addressed by the RO in a January 2017 rating decision and is not on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent prior to September 30, 2013, in excess of 30 percent from September 30, 2013, to March 22, 2017, and in excess of 20 percent from March 23, 2017 for cervical spine degenerative joint disease is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs