Citation Nr: 20072880 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 12-02 356 DATE: November 12, 2020 ORDER Entitlement to disability ratings higher than 10 percent before December 4, 2009, and 20 percent from December 4, 2009, for C5-C6 degenerative disc disease with spondylolysis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Before December 4, 2009, the Veteran’s C5-C6 degenerative disc disease with spondylolysis did not limit forward flexion to 30 degrees or less, limit combined motion to 170 degrees or less, cause abnormal gait or abnormal spinal contour, or cause incapacitating episodes. That disability has not limited forward flexion to 15 degrees or less or caused ankylosis or incapacitating episodes. 2. The Veteran’s service-connected disabilities of the neck, left wrist, and left upper extremity have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for disability ratings higher than 10 percent before December 4, 2009, and 20 percent from December 4, 2009, for C5-C6 degenerative disc disease with spondylolysis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2019). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served had active service from June 1991 to March 1995. His current appeal of the disability ratings for his cervical spine disability, presently described as C5-C6 degenerative disc disease with spondylolysis, stems from his October 2009 claim for a rating for that disability higher than the 10 percent rating then in effect. In a December 2009 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) continued the 10 percent rating. The Veteran appealed that decision to the Board of Veterans’ Appeals (Board). In March 2010 the Veteran submitted a claim for a TDIU. In a November 2011 statement of the case (SOC), the RO considered the issue of a TDIU along with the issue of the rating for the cervical spine disability. In a November 2017 decision, the Board denied a rating higher than 10 percent rating for the cervical spine disability. The Board denied a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018 the Veteran and VA (the parties) submitted to the Court an amended Joint Motion for Partial Remand (amended JMPR). The parties asked the Court to vacate the parts of the November 2017 Board decision that denied a rating higher than 10 percent for the cervical spine disability and denied a TDIU. In a July 2018 Order, the Court granted the amended JMPR. In December 2018 the Board remanded the issues of the rating for cervical spine disability and of a TDIU to the RO to develop additional evidence. In a June 2020 rating decision, the RO increased the rating for the cervical spine disability to 20 percent from December 4, 2009. The issues presently before the Board on appeal are ratings for the cervical spine disability higher than 10 percent before December 4, 2009, and 20 percent from December 4, 2009, and a TDIU. 1. Disability ratings for C5-C6 degenerative disc disease with spondylolysis The Veteran is seeking ratings for his cervical spine disability, presently described as C5-C6 degenerative disc disease with spondylolysis, higher than 10 percent before December 4, 2009, and 20 percent from December 4, 2009. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38 C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The RO has evaluated the Veteran’s cervical spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome. The rating schedule provides for evaluating intervertebral disc syndrome under a General Rating Formula for Diseases and Injuries of the Spine, or a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. For cervical spine disorders, the General Formula provides a 40 percent rating for unfavorable ankylosis of the entire cervical spine. It provides a 30 percent rating for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The General Formula provides for a 20 percent rating 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. It provides for a 10 percent rating 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. 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 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. The Incapacitating Episodes Formula assigns ratings based on the total duration of incapacitating episodes over the past twelve months. It assigns ratings of 60 percent if that duration is at least six weeks, 40 percent if at least four weeks but less than six weeks, 20 percent if at least two weeks but less than four weeks, and 10 percent if at least one week but less than two weeks. The Veteran’s VA treatment records from 2008 to 2020 reflect his ongoing neck pain. On VA examination in September 2008, he reported worsening of his neck disability over time. He related having neck pain intermittently, one to six days per week. He reported flare-ups with lifting, carrying, or working. He stated that he was employed in clerical work. He indicated that, because of his neck pain, he had been assigned different duties. He noted that his neck pain interfered with his concentration. He had not had any incapacitating episodes of the past twelve months. The examiner found that the cervical spine muscles had tenderness and pain with motion, and did not have spasm or weakness. There was no abnormal spinal contour. The ranges of motion were to 45 degrees of forward flexion, 35 degrees of extension, with pain from 30 degrees, 35 degrees of left lateral flexion, with pain from 30 degrees, 30 degrees of right lateral flexion, with pain from 25 degrees, and 70 degrees of rotation to each side, with pain. Active and passive ranges were the same. Pain with motion occurred with active and passive motion. The RO received on October 27, 2009, the Veteran’s claim for an increased rating for his cervical spine disability. He requested reevaluation for the disability, asserting that the disability had worsened since his last examination. On VA examination on December 8, 2009, the Veteran reported progressively worsening neck disability. He related weakness and decreased motion. He reported daily episodes of neck pain, each lasting for minutes. He stated that he usually worked in human resources, and that he had been unemployed for less than one year. The examiner found no abnormal spinal contour. There was no muscle spasm. Ranges of motion of the cervical spine were to 45 degrees of forward flexion, with pain at 45 degrees, 45 degrees of extension, with pain at 45 degrees, 45 degrees of lateral flexion to each side, with pain at 45 degrees, and 80 degrees of rotation for each side, with pain at 80 degrees. In each direction there was pain after repetitive use. Active and passive ranges were the same. Pain with motion occurred with active and passive motion. On VA examination in March 2010, the Veteran reported a constant dull ache in his neck. He stated that with movement, carrying, or lifting he had flare-ups of sharp pain. He reported that stiffness and pain flare-ups occurred several times a week and lasted up to several hours. He stated that his neck pain contributed to the loss of his last job and to difficulty finding a new job. He denied incapacitating episodes of neck pain in the past twelve months. The examiner found ranges of motion of the cervical spine to 35 degrees of forward flexion, with pain from 25 degrees, 20 degrees of extension, with pain from 10 degrees, 25 degrees of lateral flexion to each side, with pain from 20 degrees, and 65 degrees of rotation to each side, with pain from 60 degrees. On VA examination in September 2011, the Veteran reported that, since the 2010 examination of his neck, more stiffness and pain had developed. He related constant baseline neck stiffness and pain, and flare-ups of worse symptoms with overexertion. There had been no incapacitating episodes over the past twelve months. The examiner found forward flexion to 45 degrees, extension to 30 degrees, with pain at 30 degrees, lateral flexion to 30 degrees to each side, on the right with pain at 30 degrees. There was left rotation to 55 degrees. Right rotation was to 60 degrees, with pain from 55 degrees. After three repetitions, the ranges remained the same. In November 2011, the examiner expressed the opinion that the Veteran’s neck disability made him unable to do heavy lifting, and limited his capacity for strenuous physical employment, but should not preclude light duty or sedentary employment. In a January 2012 substantive appeal, the Veteran stated that his cervical spine disability was manifested by painful motion in the C5-C6 area. He also asserted that his cervical spine disability caused him to have an abnormal gait. On VA examination in April 2015, the Veteran reported pain in his lower neck when he tried to look up more than 40 degrees. Examination showed forward flexion to 45 degrees, extension to 40 degrees, lateral flexion to 40 degrees to each side, left rotation to 55 degrees, and right rotation to 60 degrees. There was no pain on motion. After three repetitions, ranges remained the same. The examiner stated that the Veteran’s neck disability did not affect his ability to work. With respect to the Veteran’s gait, the examiner found that the Veteran had cerebellar ataxia. The examiner expressed the opinion that his cerebellar ataxia is not caused by or a result of his service-connected neck disability. On VA examination in June 2017, the Veteran reported constant moderate neck pain, and sharp pains with certain positions. He related limitation of rotation. He stated that lifting was terrible. He reported that he last worked in 2005, for a parks and recreation department. Examination showed forward flexion to 45 degrees, extension to 40 degrees, lateral flexion to 40 degrees to each side, left rotation to 55 degrees, and right rotation to 60 degrees. There was pain with motion in every direction except forward flexion. There was pain with and without weightbearing. There was pain on active motion and on passive motion. After three motions the ranges remained the same. The examiner found that, with repeated use over time, pain would significantly limit functional ability. In the July 2018 JPMR and Court Order, it was noted that VA examinations of the Veteran’s neck had not addressed functional loss after repetitive use and flare-ups. On VA examination in November 2019, the Veteran reported further worsening of limitation of motion and pain in his neck. He related mild daily pain, exacerbated with excessive use. He reported difficulty with rotation, especially with flare-ups. Examination showed forward flexion to 40 degrees, extension to 40 degrees, left lateral flexion to 25 degrees, right lateral flexion to 30 degrees, left rotation to 50 degrees, and right rotation to 55 degrees. There was pain with rotation to each side. Pain on rotation occurred on active motion and passive motion, and without weightbearing. There was no evidence of pain with weightbearing. The examiner indicated that the pain did not cause functional loss. After three repetitions, motion was limited to forward flexion to 35 degrees, extension to 35 degrees, left lateral flexion to 25 degrees. Right lateral flexion to 35 degrees, left rotation to 40 degrees, and right rotation to 50 degrees. The examiner indicated that examination findings were not consistent or inconsistent with functional loss with repetitive use over time. The examiner opined that, during flare-ups, pain and weakness would limit forward flexion to 30 degrees, extension to 30 degrees, lateral flexion to 20 degrees to each side, left rotation to 35 degrees, and right rotation to 40 degrees. The neck had guarding and muscle spasm that did not result in abnormal spinal contour. The examiner stated that the Veteran’s neck disability would cause him difficulty with heavy lifting or overhead activities. Examination and treatment records and the Veteran’s statements provide information about the effects of the Veteran’s neck disability before December 4, 2009. In that period, forward flexion of his cervical spine was not limited to 30 degrees or less. The combined range of motion of his cervical spine was not limited to 170 degrees or less. His cervical spine area tenderness did not result in abnormal gait or abnormal spinal contour. The Veteran asserted that his cervical spine disorder might cause his gait abnormalities. The Board is persuaded, however, by the finding of the 2015 examiner that the Veteran’s cervical spine disorders do not cause his gait issues, which the examiner attributed to cerebellar ataxia. The pain on motion of the Veteran’s cervical did not produce disability comparable to any of the General Formula criteria for a rating higher than 10 percent. There were no incapacitating episodes, so no basis for a rating higher than 10 percent under the Incapacitating Episodes Formula. The disability picture did not meet or approximate the criteria for a rating higher than 10 percent. The Board denies a rating higher than 10 percent before December 4, 2009. The Veteran’s examination and treatment records and his statements show a cervical spine disability picture from December 4, 2009, in which forward flexion has not been limited to 15 degrees or less, and the cervical spine has not been in ankylosis. The pain on motion of his cervical spine has not produced disability that approximates any of the General Formula criteria for a rating higher than 20 percent. Functional loss testing was conducted in 2019, and the findings are not productive of a higher rating. There have been no incapacitating episodes, so no basis for a rating higher than 10 percent under the Incapacitating Episodes Formula. The Board denies a rating higher than 20 percent. 2. TDIU The Veteran is seeking a TDIU. VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. A TDIU may be assigned, on an extra-schedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). The Veteran’s service-connected disabilities are left wrist arthritis, his cervical spine disability, and radiculopathy of his left upper extremity. The Veteran also has epilepsy or other neurological disorder with manifestations including seizures and balance and gait problems. He has sought service connection for that disorder. VA has denied service connection, and there is no open appeal of that denial. None of the Veteran’s service-connected disabilities has been rated at least 40 percent. The combined rating has never been at least 70 percent. The ratings have not met the 38 C.F.R. § 4.16(a) criteria for a TDIU. The Board nonetheless could refer the claim for consideration of a TDIU on an extraschedular basis if the Veteran’s service-connected disabilities made him unable to secure or follow a substantially gainful occupation. The Veteran’s claims file provides some information about his education and work history and the effects of his disorders on his capacity for work. His VA vocational rehabilitation file contains a notation that his education was through twelfth grade. Documents assembled for his claim for Social Security Administration (SSA) benefits reflect his report that he attended college and completed a degree. In a VA examination in September 2008, he indicated that he was employed in clerical work. In a VA examination in March 2010, he reported that disabilities of his neck and left arm, and problems with balance, made him less productive in his last job. He stated that his supervisor learned of his medical condition and let him go. He stated that his neck and balance problems then made it hard for him to find a new job. In his SSA claim, the Veteran listed his post-service employment from 1997 to 2009, including work as a truck driver, engineer, parks maintenance worker, clerk, and social service representative. In January 2010 SSA found that the Veteran had been disabled since July 2009, due to a primary diagnosis of “epilepsy/ seizure disorder” and a secondary diagnosis of “back disorder (disc/degenerative).” (Continued on the next page)   In November 2011, a VA examiner expressed the opinion that the Veteran’s neck disability made him unable to do heavy lifting, and limited his capacity for strenuous physical employment, but should not preclude light duty or sedentary employment. Both the Veteran and SSA have attributed his unemployability to a combination of his neck, arm, and wrist disabilities, which are service connected, and his seizure and balance problems, which are not service-connected. In the absence of a persuasive finding or opinion that his service-connected disabilities make him unable to secure or follow a substantially gainful occupation, extraschedular consideration of a TDIU is not warranted. The Board denies a TDIU. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.