Citation Nr: 20021456 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-64 233 DATE: March 25, 2020 ORDER Entitlement to a rating in excess of 10 percent for cervical spine degenerative disc disease and spondylosis prior to July 17, 2017 is denied. Entitlement to a rating of 20 percent for cervical spine degenerative disc disease and spondylosis, but no higher, beginning on July 17, 2017, is granted. REMANDED Entitlement to an initial compensable rating for allergic rhinitis is remanded. FINDINGS OF FACT 1. Prior to July 17, 2017, the Veteran’s cervical spine degenerative disc disease and spondylosis was manifested by forward flexion greater than 30 degrees or less and combined range of motion of 170 degrees or less even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without muscle spasms; guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS) . 2. Beginning on July 17, 2017, the Veteran’s cervical spine degenerative disc disease and spondylosis manifested by forward flexion greater than 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or IVDS. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spine degenerative disc disease and spondylosis prior to July 17, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for a rating of 20 percent for cervical spine degenerative disc disease and spondylosis, but no higher, beginning on July 17, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1986 to June 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) of St. Petersburg, Florida. The Veteran perfected her appeal in December 2017, but only as to the claims for increased ratings for her cervical spine disability and allergic rhinitis. For the reasons to follow, the Board finds that resolving all reasonable doubt in the Veteran’s favor, the Veteran is entitled to a staged rating increase for her cervical spine disability to 20 percent, but no higher, effective July 17, 2017—the date of her most recent VA examination. Prior to that date, the Board denies the remainder of the Veteran’s claim for a rating in excess of 10 percent. Meanwhile, with respect to her claim for a compensable rating for allergic rhinitis, while the Board regrets additional delay, a remand is required. Increased Rating Disability evaluations are determined 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 Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (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 would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 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, 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran’s service-connected cervical spine disability is currently evaluated as 20 percent disabling under Diagnostic Code 5237. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. As Diagnostic Codes 5237 and 5243 contain successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during a 12 month period; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during a 12 month period; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. 38 C.F.R. § 4.71a. An incapacitating episode is defined by regulation as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine, 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, provides the following: A 10 percent rating is assigned when forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; when the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; when muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or, when muscle spasm or guarding is 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 assigned when forward flexion of the cervical spine is 15 degrees or less; or when there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine. For the cervical spine, normal range of motion on forward flexion is zero to 45 degrees; backwards extension, zero to 45 degrees; lateral flexion, zero to 45 degrees; and, lateral rotation, zero to 80 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). By way of background, service connection for the Veteran’s degenerative disc disease of the cervical spine with spondylosis was granted effective July 1, 2012 (the day after her discharge), pursuant to the December 2012 rating decision on appeal, establishing an initial rating of 10 percent. The Veteran’s Notice of Disagreement challenges the propriety of the initial rating. The Veteran first submitted to a VA examination of the cervical spine in August 2012—while still in service. The Veteran indicated that she was susceptible to flare-ups in the neck, in that her “normal activities are limited by 60 percent during a flare-up, worse with increased activity, high impact activity, [and] lifting.” See August 2012 VA Examination at Question No. 3. While the examiner noted localized tenderness, id. at Question No. 7a, she concluded that the Veteran did not have guarding or muscle spasms of the cervical spine, id. at Question No. 7b. The examiner also confirmed that the Veteran did not suffer from a vertebral fracture, id. at Question No. 17, nor from intervertebral disc syndrome, id. at Question No. 13 et seq. Ultimately, the Veteran was awarded an initial 10 percent rating, based on forward flexion of 40 degrees and a combined range of motion of 290 degrees. See id. at Question No. 4 et seq. The Veteran underwent a second VA examination for the cervical spine on July 17, 2017. As seen in the July 17, 2017 examination results, the Veteran’s forward flexion range of motion was 40 degrees, but her combined range of motion was 175 degrees. See id. at Question No. 3a. Even though the examiner indicated that the Veteran was able to perform repetitive use testing without any loss of range of motion, she was not examined after repetitive use. See id. at Question Nos. 3b-c. The Veteran stated that she was still prone to flare-ups, which appear to be caused by head turning, lifting, and prolonged sitting, and subjectively result in pain with motion and decreased motion. See July 2017 VA Examination at Questions Nos. 2c-d. The Board is mindful that functional loss during flare-ups must be considered, as per the Court of Veterans Appeals holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the 2017 examiner was not examining the Veteran during a flare-up, and therefore could not estimate additional functional loss without resorting to speculation. In this regard, the VA examiner opined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. See July 2017 VA Examination at Questions Nos. 3c-d. On the other hand, throughout the period on appeal, the Veteran has consistently stated that she is prone to flare-ups and is susceptible to a decreased range of motion; meanwhile, overall, the Veteran stated that as of July 2017, her condition had deteriorated. See id. at Question No. 2a. For the appeal period prior to July 17, 2017, the Board finds that an initial rating in excess of 10 percent for the Veteran’s cervical spine degenerative disc disease is not warranted. In this regard, at no point during the appeal period has her cervical spine been characterized by forward flexion of the cervical spine limited to less than 30 degrees; or, the combined range of motion of the cervical spine limited to less 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, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at worse, forward flexion of the cervical spine was limited to 40 degrees and combined range of cervical spine motion to 290, even considering pain and other factors during the August 2012 VA examination. The Board notes that the Veteran reported flare-ups with increased activity or high impact activity and that her “normal activities were limited by 60 percent during the August 2012 VA examination. However, she did not report that her range of motion was restricted during flare-ups. Although the record reflects that the Veteran experienced localized tenderness or pain to palpation for the joint/soft tissue areas of the cervical spine, such was no severe enough to have guarding and/or muscle spasms. Furthermore, the record does not show ankylosis. Accordingly, a rating in excess of 10 percent for the Veteran’s cervical spine degenerative disc disease under the General Rating Formula is not warranted prior to July 17, 2017. Moreover, the record does not reflect, and the Veteran does not contend, that she suffered from incapacitating episodes of IVDS of the cervical spine requiring bed rest prescribed by a physician and treatment by a physician. In this regard, the November 2017 VA examiner found that the Veteran had IVDS of the cervical spine, but that such did not require bed rest and treatment by a physician in the past 12 months. Thus, the provisions of the IVDS Formula would not result in a higher rating for her cervical spine degenerative disc disease. For the appeal period beginning on July 17, 2017, the Board finds that while the July 2017 VA examination results are highly probative as to the current severity of the Veteran’s cervical spine degenerative disc disease and spondylosis, the examination does not contradict the Veteran’s lay testimony about her flare-ups. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465 (1994). Ultimately, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (2010). In this instant case, the Board observes that the Veteran has credibly stated that she is prone to flare-ups, as recounted above. At the July 2017 examination—at which time she was not suffering from a flare-up—the Veteran reported that flare-ups resulted in pain and decreased motion and her combined range of motion of the cervical spine was 175 degrees. The evidence is at least in relative equipoise to suggest that because the Veteran was free from the effects of flare-ups at her last examination, any measurable loss of range of motion due to a flare-up would have yielded a combined range of motion not greater than 170 degrees, and thus a 20 percent rating is warranted as of July 17, 2017. 38 C.F.R. §§ 4.3, 4.7; Johnson v. Wilkie, 30 Vet. App. 245 (2018). After granting a staged rating to 20 percent effective July 17, 2017, the Board has further considered whether, under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5237, an even higher rating is warranted. The Board concludes that none is warranted. A 30 percent rating is warranted only is the Veteran exhibits forward flexion of the cervical spine 15 degrees or less, or else exhibits ankylosis of the entire cervical spine. The Veteran’s forward flexion of the cervical spine was 40 degrees, see July 2017 VA Examination at Question No. 3a, and the Veteran does not have ankylosis, id. at Question No. 8. As the Veteran does not meet the criteria for a 30 percent rating, she does not meet the criteria for any other higher rating. The Board also notes that the Veteran is already in receipt of a separate rating for her cervical spine radiculopathy. Meanwhile, the Board has also considered whether the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes applies to the Veteran, and, if so, whether it would result in a more advantageous rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that at the July 2017 VA examination, the examiner appears to have simultaneously confirmed and denied intervertebral disc syndrome. See July 2017 VA Examination at Question No. 1 (indicating IVDS), but cf. id. at Question No. 10 (denying IVDS). However, in order to apply the IVDS formula, it is necessary that the Veteran have suffered from an “incapacitating episode,” which is strictly defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243 at Note (1). There is no evidence of this, and as such, Diagnostic Code 5243 does not apply to the Veteran, and there is no doubt to resolve, 38 C.F.R. § 4.3. In sum, the evidence is at least in relative equipoise to show that on July 17, 2017, but no earlier, the Veteran’s combined range of motion of the cervical spine would have been limited to no more than 170 degrees by flare-ups. For this reason, the Board affords the Veteran an increased rating to 20 percent, but no higher, effective July 17, 2017. There is no evidence of record to suggest that the Veteran is entitled to a rating in excess of 10 percent for her cervical spine degenerative disc disease and spondylosis any earlier than July 17, 2017 nor is there any evidence of record to suggest that she is entitled to a rating in excess of 20 at any time thereafter. 38 C.F.R. § 4.71a, Diagnostic Code 5237. There is no more reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial compensable rating for allergic rhinitis is remanded. The Veteran was afforded a VA examination in July 2017 to determine the severity of her allergic rhinitis. Although the Veteran did undergo an examination, the July 2017 VA examination report omitted a response to whether the Veteran exhibited complete obstruction on the left side. This response, if present, could have determined whether a compensable rating for the disability could be warranted. 38 C.F.R. § 4.97. As no response is present, the Board must remand the matter for an updated examination, because the evidence of record is not complete enough to adequately rate the severity of the Veteran’s allergic rhinitis. Separately, the Board notes that a July 2013 VA treatment record indicated that the Veteran was under the care of private, non-VA allergist Dr. R.L.S. , who examined her approximately once every three months. As of September 2017, Dr. R.L.S. appears to still serve as a treating physician. The Board is only in receipt of Dr. R.L.S.’s records from May 2012 to September 2012. On remand, the Agency of Original Jurisdiction should obtain these additional treatment records from Dr. R.L.S., and should afford the Veteran and her representative similar opportunities to associate other relevant treatment records with her file. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated September 2017 to the present, should be obtained. For private treatment records, to include records from allergist Dr. R.L.S. make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should also be scheduled for a VA examination to determine the current nature and severity of her service-connected allergic rhinitis. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran’s allergic rhinitis, to include whether either nasal passage is obstructed and, if so, the degree of such, and whether polyps are present. He or she should also describe the functional impact of such disability. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate 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.