Citation Nr: 20009720 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 10-24 746 DATE: February 5, 2020 ORDER Entitlement to a disability rating in excess of 10 percent from February 23, 2009 to August 16, 2017 for degenerative joint disease (DJD), of the cervical spine is denied. Entitlement to a disability rating in excess of 20 percent for the period from August 16, 2017 for DJD, of the cervical spine is denied. FINDINGS OF FACT 1. Prior to August 16, 2017, the Veteran’s DJD of the cervical spine manifested itself with no more than forward flexion limited to 40 degrees at its worst and a combined range of motion (ROM) of no less than 250 degrees. No 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. 2. From August 16, 2017, the Veteran’s DJD of the cervical spine manifested itself with no more than forward flexion limited to 20 degrees at its worst and a combined ROM of 145 degrees with muscle spasms and guarding which resulted in abnormal gait or abnormal spine contour. 3. At no time during the pendency of the appeal has the Veteran’s cervical spine disability manifested itself with forward flexion limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. Prior to August 16, 2017 the criteria for a disability rating in excess of 10 percent for a cervical disability have not been met. 38 U.S.C. § 1115; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. As of August 16, 2017, the criteria for a disability rating in excess of 20 percent for a cervical disability have not been met. 38 U.S.C. § 1115; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to November 1996 with additional unverified service since November 1974. This matter comes before the Board of Veteran’s Appeals (Board) from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran’s cervical condition was originally service connected in a March 1997 rating decision. In February 2009, the Veteran presented a claim for increased rating of his cervical condition. The Veteran’s claim for increased rating of his cervical condition was denied in a September 2009 rating decision. The Veteran presented a timely notice of disagreement (NOD) and has consistently pursued his appeal. During the pendency of the appeal, the Veteran’s cervical condition disability rating was increased from 10 percent to 20 percent with an effective date of August 16, 2017. As this increase did not constitute a full grant of the benefits sought, the matter is still on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). This matter was previously before the Board in January 2016, June 2017 and April 2018 when the claim was remanded for examinations. The Board finds the April 2018 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board noted in a June 2017 decision, where the claim presently before the Board for an increased rating of the cervical disability was remanded, that the Veteran withdrew his claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran has not submitted a new claim for TDIU since his prior withdrawal. As such, the Board finds that a TDIU claim has not been raised by the Veteran nor the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to a disability rating in excess of 10 percent from February 23, 2009 to August 16, 2017 and in excess of 20 percent thereafter for degenerative joint disease of the cervical spine Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion (ROM) measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination and pain on movement, swelling, and deformity or atrophy of disuse. 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. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). Essentially, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s back disability is currently rated under diagnostic code (DC) 5242, which pertains to degenerative arthritis of the spine under the General Rating Formula. 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. A 10 percent rating is warranted if forward flexion of the cervical spine was greater than 30 degrees but not greater than 40 degrees; or, combined ROM 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 where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined ROM 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 when forward flexion of the cervical spine is limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted unfavorable ankylosis of the entire cervical spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 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 […]. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM 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 ROM. The Veteran’s medical records have been associated with the claims file. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board finds that the preponderance of the evidence is against finding that prior to August 16, 2017 the Veteran’s cervical condition has more nearly approximated the 20 percent rating criteria or that it approximated the 30 percent rating criteria for the period following August 16, 2017, under DC 5242. In June 2009, VA examined the Veteran for his cervical spine. In this examination, the Veteran was noted to have the following initial ROM measurements: forward flexion from 0 to 40 degrees, extension from 0 to 40 degrees, left lateral flexion from 0 to 40 degrees, right lateral flexion from 0 to 40 degrees, left lateral rotation from 0 to 75 degrees and right lateral rotation from 0 to 75 degrees. The Veteran’s combined ROM was 310 degrees. No additional loss in ROM was noted after repetitive use. The Veteran was noted to work full time although his neck condition caused pain but did not preclude his performance. Additionally, the examiner noted no cervical spine spasms, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, guarding, vertebral fracture, motor impairment nor sensory impairment. All extremities were noted to have normal motor function although abnormal reflexes for the Veteran’s bilateral biceps and triceps were noted. The Veteran reported moderate daily stiffness and weakness in his neck and shoulders related to his cervical condition. No ankylosis of the cervical spine nor associated neurological deficits were noted. The Veteran reported daily flareups which he described as pain and stiffness, which waxed and waned of moderate severity, lasting hours, caused by increased strenuous activity. The Veteran explained that his flareups were alleviated by rest and did not incapacitate him nor kept him from working. The examiner noted the Veteran had an abnormal gait described as an antalgic, limping gait which stemmed from the Veteran’s left leg condition and not his spine condition. The Veteran’s cervical spine was noted to be abnormally straight with normal symmetry. See medical VA examination of June 2009. In September 2009, the Veteran’s private medical records reveal he complained of shooting pain from side of neck to right shoulder pain. The Veteran’s right shoulder was noted to have limited ROM. See medical records for September 2009. In February 2011, the Veteran was administered a Spine Compensation and Pension Examination (C&P). In this examination, the Veteran’s active cervical spine ROM was measured as: flexion from 0 to 40 degrees, extension from 0 to 45 degrees, left lateral flexion from 0 to 25 degrees, right lateral flexion from 0 to 25 degrees, left lateral rotation from 0 to 70 degrees and right lateral rotation from 0 to 70 degrees. The Veteran’s combined ROM was 275 degrees. No additional limitation of ROM was noted after 3 repetitions. Normal reflexes for all extremities were noted. The Veteran was found to have a normal gait. No ankylosis, spasms, atrophy, nor weakness noted. The Veteran was noted to have guarding, pain with motion and tenderness. See Spine C&P of February 2011. In March 2016, the Veteran was afforded another Neck C&P examination. In this examination, the Veteran’s initial cervical spine ROM was noted to be abnormal and measured as: flexion from 0 to 45 degrees, extension from 0 to 35 degrees, left lateral flexion from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral rotation from 0 to 55 degrees and right lateral rotation from 0 to 55 degrees. No additional loss of function or ROM was noted after 3 repetitions. The Veteran’s combined ROM was 250 degrees. The Veteran reported flareups described as shooting pain from based of the skull, straight down the spine and down the Veteran’s right shoulder. The Veteran reported functional loss described as right arm weakness. The examiner noted no additional loss of function or ROM after 3 repetitions. There was no localized tenderness, guarding, muscle spasm, nor ankylosis noted by the examiner. Muscle atrophy was noted in the interosseous muscles of the left hand with decreased sensation in the left ulnar distribution. Radiculopathy described as moderate intermittent pain and paresthesias or dysesthesias of the right upper extremity. The examiner also noted the Veteran had mild weakness of the lower bilateral extremities and that the etiology of the weakness was unknown. See March 2016 Neck C&P. In August 2017, the Veteran was afforded a Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ). In this examination, the Veteran’s initial cervical spine ROM was noted to be abnormal and measured as: flexion from 0 to 45 degrees, extension from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral flexion from 0 to 10 degrees, left lateral rotation from 0 to 10 degrees and right lateral rotation from 0 to 40 degrees. Additional loss of function or ROM was noted after 3 repetitions as follows, forward flexion from 0 to 30 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 30 degrees and left lateral rotation from 0 to 10 degrees. The functional loss noted was due to pain. The examination was not conducted during a flareup. The Veteran’s initial combined ROM was 145 degrees and 110 degrees after repetitive use. The Veteran reported weakness in both arms, gripping issues in the right hand and that he had to support his right hand with his left. The Veteran also reported flareups which the Veteran noted impacted his ability to lift, pull and push and that in some days his pain level is a 7 in a scale from 1 to 10. The examiner noted the Veteran had muscle spasms which did not result in abnormal gait or abnormal spinal contour and guarding that resulted in abnormal gait or abnormal spinal contour. No muscle atrophy nor ankylosis was noted. The examiner also noted the Veteran had decreased sensation to light touch and moderate radiculopathy in the upper extremities with no other neurologic abnormality noted. See Cervical Spine DBQ of August 2017. In October 2019, another Cervical Spine DBQ was afforded to the Veteran. The Veteran’s initial cervical spine ROM was noted to be abnormal and measured as: flexion from 0 to 20 degrees, extension from 0 to 15 degrees, left lateral flexion from 0 to 20 degrees, right lateral flexion from 0 to 15 degrees, left lateral rotation from 0 to 45 degrees and right lateral rotation from 0 to 30 degrees. The Veteran’s combined ROM was 145 degrees. In this examination no additional functional loss or ROM was noted after repetitive use testing. The examiner further noted that the Veteran reported decreased ROM after repetitive use over time which the examiner found to be consistent with the degenerative spinal disease the Veteran has. The examiner also noted that the severity of pain and weakness are moderate during a flareup after repetitive use over time. The flareups were noted to occur less than once weekly, typically 3 times a month, and that the flareups last several hours. As the Veteran was not examined immediately after repetitive use over time, no ROM measurements were noted. In this examination, the Veteran was noted to have both muscle spasms and guarding which resulted in abnormal gait or abnormal spine contour. Additionally, the examiner noted the Veteran had decreased movement of right arm due to injury to his peripheral nerves. No muscle atrophy was noted. Decrease sensation to light tough was noted for both upper extremities with mild radiculopathy in the left upper extremity and moderate radiculopathy in the right upper extremity. No ankylosis nor any other neurologic abnormalities were noted. The examiner noted the Veteran was retired and that his neck condition impacted his ability to work. Reduced strength in right arm rendered the Veteran unable to perform the work he had been trained to do as a street service worker. See October 2019 Cervical Spine DBQ. The Board notes that although the examiner did not estimate the motion loss in terms of degrees during flareups in this examination because the Veteran was not being examined after repetitive use over time, he elicited information regarding the severity, frequency, duration, or functional loss manifestations during flare-ups from the Veteran. Accordingly, the Board finds this examination to be compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds this October 2019, adequate and affords it high probative value. The Board notes the Veteran has consistently reported flareups associated with his cervical disability. However, the Board finds that the description of these flareups is consistent with the ratings assigned during the appropriate rating periods. The Board is sympathetic to the Veteran’s plight; however, the preponderance of the evidence is against the finding that the Veteran’s flareups, or his symptoms as noted in his statements, have at any time of the appeal manifested with such intensity as to warrant a higher rating than the one assigned during the rating periods discussed above. Based on the foregoing, the Board finds that prior to August 16, 2017, the Veteran’s cervical disability manifested itself with no more than forward flexion limited to 40 degrees at its worst and a combined ROM of no less than 250 degrees which is consistent with a 10 percent disability rating under DC 5242. The Board notes that in the 2009 examination, the examiner noted the Veteran had an antalgic gait related to a leg condition and not his cervical condition. Additionally, the Board notes that although in the February 2011 examination the Veteran was noted to have guarding, the guarding did not cause an abnormal gait or spinal contour. Accordingly, the Board finds that the preponderance of the evidence is against finding that prior to August 16, 2017 the Veteran’s cervical disability manifested with symptoms which more nearly approximated the criteria for the higher rating of 20 percent and the claim must be denied. (Continued on the next page)   For the period following August 16, 2017, the Board finds that the Veteran’s cervical disability manifested itself with no more than forward flexion limited to 20 degrees at its worst and a combined ROM of 145 degrees. Additionally, the Veteran was noted to have muscle spasms and guarding which resulted in abnormal gait or abnormal spine contour. These findings are consistent with a 20 percent rating under DC 5242. At no time during the pendency of the appeal has the Veteran been noted to have forward flexion of the cervical spine limited to 15 degrees or less nor favorable ankylosis of the entire cervical spine. Accordingly, the Board finds that the preponderance of the evidence is against finding that for the period following August 16, 2017 the Veteran’s cervical disability manifested with symptoms which more nearly approximated the criteria for the higher rating of 30 percent and the claim must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.