Citation Nr: 18137888 Decision Date: 09/24/18 Archive Date: 09/24/18 DOCKET NO. 16-19 716 DATE: September 24, 2018 ORDER Service connection for a neck disorder, to include degenerative disc disease of the cervical spine with ventral spinal cord impingement and cervicalgia is granted. An initial rating of 20 percent from January 28, 2011 and continuing thereafter for the Veteran’s service-connected degenerative joint disease status-post lumbar fusion is granted. REMANDED ISSUE The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran’s neck disorder was caused by service. 2. For the entirety of the rating period on appeal, the Veteran’s thoracolumbar spine exhibited flexion, at worst, 50 degrees and muscle spasms or guarding that did not result in an abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a neck disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2017). 2. The criteria to establish an initial rating of 20 percent from January 28, 2011 and continuing thereafter for degenerative joint disease status-post lumbar fusion have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army National Guard from February 1999 to July 1999, February 2004 to March 2005 and May 2006 to November 2007 with periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). He served in Southwest Asia and his military decorations include the Combat Medical Badge. A 100 percent disability evaluation for posttraumatic stress disorder is in effect January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the St. Petersburg, Florida Regional Office (RO). Service connection for a neck disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his neck disorder resulted from his service in Iraq due to the weight of the equipment he carried and riding in military vehicles over rough terrain for prolonged periods. The Veteran’s report of separation from the armed forces (DD Form 214) indicates that he served in Southwest Asia from March 2004 to February 2005 as a health care specialist. He was awarded the Combat Medical Badge. The Veteran’s award of the Combat Medical Badge is a per se indication that he served in combat, which triggers application of 38 U.S.C. § 1154(b). The statute provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event. Collette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). In a May 2004 service treatment record (STR), the Veteran reported experiencing upper back pain for approximately two months. In a January 2005 post-deployment health assessment record, the Veteran answered in the affirmative to the question of whether he currently has, or developed upper back pain during his deployment to Southwest Asia. In an April 2005 statement of medical examination and duty status, the Veteran reported experiencing upper back pain. The service medical examiner indicated that the Veteran’s upper back pain was incurred in the line of duty. VA treatment records from January 2011 to April 2015 reflect the Veteran’s reports of experiencing neck pain. A March 2011 VA cervical spine radiograph revealed cervicalgia. In June 2011, the Veteran was afforded a VA examination. He was diagnosed with degenerative disc disease of the cervical spine with ventral spinal cord impingement. The Veteran reported that his neck pain began during his service in Southwest Asia. The VA examiner opined that the Veteran’s neck disorder was caused by service because VA treatment records indicated that the Veteran’s neck disorder was chronic. In June 2012, the Veteran was afforded another VA examination. He was diagnosed with degenerative disc disease of the cervical spine. The Veteran reported that his neck pain began during his service in Southwest Asia. The VA examiner opined that the Veteran’s neck disorder was not caused by service because the Veteran’s medical records did not reveal a chronic neck disorder. The Board will grant based on the benefit-of-the-doubt doctrine. STRs pertaining to the Veteran’s service in Southwest Asia reflect his reports of experiencing neck and upper back pain during service. The June 2011 VA examiner opined that the Veteran’s neck disorder was caused by his service in Southwest Asia; however, the June 2012 VA examiner opined otherwise. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claim is granted. An initial rating of 20 percent for the entirety of the rating period on appeal for degenerative joint disease status-post lumbar fusion The Veteran is rated 10 percent disabling under DC 5242 for the entirety of the rating period on appeal for his service-connected degenerative joint disease status-post lumbar fusion. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Diagnostic Code (DC) 5242 provides ratings for degenerative arthritis of the spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 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. 38 C.F.R. § 4.71a, DC 5242 (2017). 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. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are also several note provisions associated with DC 5242. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) 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 flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion and are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 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. Id. 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 an 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. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one 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. Id. 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. Id. In his April 2016 substantive appeal, the Veteran indicated that a higher initial rating for his degenerative joint disease status-post lumbar fusion was warranted. In the June 2011 VA examination, the Veteran reported experiencing lower back pain that was temporarily relieved by injections. Range of motion for the thoracolumbar spine was flexion at 70 degrees, extension at 30 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. There was pain on motion. The combined range of motion was 220 degrees. The Veteran performed repetitive use testing with at least three repetitions with no additional limitation in range of motion. Muscle tone was normal. There was no muscle atrophy or ankylosis. It was noted that the Veteran had guarding and/or muscle spasms but it did not result in an abnormal gait or spinal contour. In the June 2012 VA examination, the Veteran reported experiencing lower back pain and decreased range of motion. He also reported that his flare-ups did not impact the function of his thoracolumbar spine. Range of motion for the thoracolumbar spine was flexion at 50 degrees, extension at 30 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. There was pain on motion. The combined range of motion was 200 degrees. The Veteran performed repetitive use testing with at least three repetitions with no additional limitation in range of motion. The factors that contributed to the functional impairment of his thoracolumbar spine were less movement than normal and pain on movement. There was no localized tenderness or pain on palpitation. It was noted that the Veteran had guarding and/or muscle spasms; however, it did not result in an abnormal gait or spinal contour. Muscle strength was normal and there was no muscle atrophy. It was also noted that the Veteran had intervertebral disc syndrome but has not had incapacitating episodes. The Veteran did not use assistive devices. VA treatment records from January 2011 to March 2016 reflect the Veteran’s reports of experiencing lower back pain. The Board will grant a 20 percent initial rating for the entirety of the rating period on appeal. Although the Veteran’s flexion of this thoracolumbar was 70 degrees in the June 2011 VA examination, his thoracolumbar spine flexion was 50 degrees in the June 2012 VA examination which more closely approximates the Veteran’s severity of his service-connected degenerative joint disease status-post lumbar fusion. Therefore, an initial rating of 20 percent is warranted and the claim is granted. A 40 percent rating is not warranted because the evidence does not indicate that the Veteran’s flexion of his thoracolumbar spine was 30 degrees or less and it was noted that the Veteran did not have ankylosis of the thoracolumbar spine. A 50 percent and a 100 percent rating is also not warranted due to the absence of ankylosis of the entire thoracolumbar spine. REMAND In a May 2011 letter, the Veteran raised the issue of entitlement to TDIU due to the disorder on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is rated 100 percent for posttraumatic stress disorder (PTSD); 20 percent for degenerative joint disease status-post lumbar fusion and tinnitus at 10 percent. A grant of a 100 percent disability rating does not always render the issue of entitlement to a TDIU moot, and VA’s duty to maximize benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Therefore, he meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16 (a). In a May 2011 letter from the Veteran’s VA case manager, it was indicated that the Veteran was unemployed due to his medical and mental health treatment. In the June 2011 VA examination, the Veteran reported that he was employed as a sales trainee. The most recent evidence, a December 2014 VA treatment record, indicated that the Veteran was not employed. The Veteran’s current employability status is not clear. The matter is therefore remanded for the following: 1. Ask the Veteran to provide information as to his employability status. The Veteran may submit any evidence, argument or other information to support his claim that his service-connected disorders render him unemployable. (Continued on the next page)   2. Provide any further appropriate assistance and readjudicate the claim. If appropriate, furnish the Veteran a Supplement Statement of the Case. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel