Citation Nr: 20036737 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 13-31 411A DATE: May 28, 2020 ORDER A rating in excess of 10 percent for degenerative joint disease of the cervical spine (hereinafter, “cervical spine disorder”) is denied. A separate rating for cervical radiculopathy of the right upper extremity is denied. FINDINGS OF FACT 1. Even considering the Veteran’s complaints of pain, the record does not reflect that his service-connected cervical spine disorder has been manifested by forward flexion limited to 30 degrees or less, combined motion of the cervical spine limited to 170 degrees or less, or incapacitating episodes as defined by VA regulation. 2. The Veteran does not have cervical radiculopathy or other neurologic impairment of the right upper extremity associated with the cervical spine that warrants a separate compensable rating. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a cervical spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243. 2. The criteria for a separate rating for cervical radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.303, 3.310, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1997 to March 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. The Board previously remanded the Veteran’s cervical spine claim for additional development in October 2017 and May 2019. On the latter occasion, the Board expanded the appeal to include consideration of whether separate ratings were warranted for cervical headaches and radiculopathy of the upper extremities. After taking the further action directed in the Board’s remand, the agency of original jurisdiction (AOJ) granted service connection for cervicogenic headaches and radiculopathy of the left upper extremity; continued the prior 10 percent rating for the Veteran’s cervical spine disorder; denied service connection and a separate rating for radiculopathy of the right upper extremity; and returned the case to the Board There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not expressed dissatisfaction with the ratings or effective dates assigned for cervicogenic headaches and/or left upper extremity radiculopathy following the award of service connection for those disabilities. As such, those matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board notes that the AOJ furnished the Veteran a supplemental statement of the case relative to the matters herein decided in April 2020. Although some additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c) (2018). The Board also notes that in the May 2019 remand it found that a June 2017 VA examination report was inadequate with respect to records review as it related to cervical headaches and radiculopathy. However, no inaccuracies were noted with respect to the range of motion findings contained in that report. Moreover, the deficiencies with respect to radiculopathy were corrected by a subsequent December 2019 VA examination. No other deficiency in the duty to assist has been identified. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. Increased Rating 1. Entitlement to a rating in excess of 10 percent for a cervical spine disorder Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board notes that both the Veteran’s cervical spine disorder has been manifested by complaints of pain and limited motion/mobility. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 are the maximum that can be used for calculation of the combined range of motion. The General Rating Formula for Diseases and Injuries of the Spine provides that 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 for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, if the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, if there is vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, if the combined range of motion of the cervical spine is not greater than 170 degrees. Forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine, warrants a 30 percent evaluation. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Here, even with consideration of the Veteran's complaints of pain, the record does not reflect that his cervical spine disorder has been manifested by forward flexion limited to 30 degrees or less, nor combined motion of the cervical spine limited to 170 degrees or less. In pertinent part, an October 2010 VA examination noted cervical flexion, extension, right and left lateral bending all to 45 degrees, with pain noted at 30 degrees; as well as right and left rotation to 80 degrees, with pain noted at 70 degrees. Further, with repetition, there was no additional loss of motion secondary to pain, weakness, or lack of endurance. An October 2012 VA examination noted forward flexion of the cervical spine to 40 degrees, extension to 30 degrees, right and left lateral bending to 30 degrees, and right and left lateral rotation to 60 degrees. The examiner stated there was no additional limitation of motion following repetitive motion testing. However, the actual test results listed on the report noted that after repetitive testing he had right and left lateral rotation to 30 degrees, with no changes to flexion, extension, or right and left lateral bending. In any event, he had forward flexion in excess of 30 degrees and combined range of motion greater than 170 degrees. A May 2017 VA examination noted forward flexion of the cervical spine to 45 degrees, extension to 30 degrees, right and left lateral flexion to 45 degrees, and right and left lateral rotation to 80 degrees. There was no change following repetitive motion testing. Further, the examiner noted that the examination was being conducted during a flare-up. Finally, the most recent VA examination in December 2019 noted forward flexion of the cervical spine to 45 degrees; extension to 30 degrees; right lateral flexion to 35 degrees; left lateral flexion to 45 degrees; right lateral rotation to 70 degrees; and left lateral rotation to 80 degrees. There was no change with repetitive motion testing. The examiner noted that the examination results were neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. The examiner opined that there would be no additional range of motion loss with repetitive use over time, only greater symptoms such as pain. Moreover, the examiner opined there was no pain on weight bearing; no objective evidence of pain when the neck was used in non-weight bearing; that passive range of motion was the same as active range of motion; and no pain was noted on passive range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). In summary, none of the aforementioned VA examinations demonstrate that the Veteran’s cervical spine disorder has been manifested by forward flexion limited to 30 degrees or less, or combined motion of the cervical spine limited to 170 degrees or less, even when taking into account his complaints of pain. The Board observes that all of these examinations involved repetitive motion testing in an effort to simulate the effect of repetitive use over time and/or during flare-ups. Moreover, the symptoms observed on these examinations are consistent with those noted in the other evidence, including the medical treatment records and statements from the Veteran. Nothing in the other evidence demonstrates that he does or would have limitation of motion of the cervical spine, to include during flare-ups, that would warrant a rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also taken into consideration the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in evaluating this disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the record, including the December 2019 VA examination report, does not reflect that the Veteran has been diagnosed with intervertebral disc syndrome of the cervical spine. Moreover, for purposes of this Formula, an incapacitating episode is 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. See id., Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). Here, a thorough review of the record, including the medical treatment records, does not reflect that the Veteran’s cervical spine has been manifested by incapacitating episodes as defined by VA regulation. For all these reasons, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 10 percent for his cervical spine disorder, to include on the basis of “staged” rating(s). See Fenderson, supra; Hart, supra. The benefit sought on appeal with respect to this claim must be denied. 2. Entitlement to a separate rating for cervical radiculopathy of the right upper extremity Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Moreover, as applicable to this case, Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that that any associated objective neurologic impairments should be rated separately under the appropriate Diagnostic Code. See 38 C.F.R. § 4.71a. The Board acknowledges, as previously discussed in the May 2019 remand, that the Veteran’s medical treatment records include findings of cervical radiculopathy. However, a thorough review of the record reflects that those findings all relate to the left upper extremity which, as noted, has already been service connected. The records do not demonstrate the presence of radiculopathy of the right upper extremity at any time during the pendency of this case. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Further, the June 2017 and December 2019 VA examinations included findings to the effect there is no radiculopathy or other associated neurologic impairment of the right upper extremity. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a separate rating for cervical radiculopathy of the right upper extremity. The benefits sought on appeal with respect to this claim must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.