Citation Nr: 20037598 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-56 112 DATE: June 2, 2020 ORDER Entitlement to a rating greater than 20 percent for lumbar strain is denied. Entitlement to a rating greater than 20 percent for cervical curvature with degenerative disc disease is denied. FINDINGS OF FACT 1. The Veteran’s lumbar strain is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran’s cervical curvature with degenerative disc disease is not manifested by forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. 3. The Veteran does not have intervertebral disc syndrome and is in receipt of separate ratings for his left lower extremity radiculopathy and right upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237, 5243. 2. The criteria for a rating in excess of 20 percent for cervical curvature with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1982 to February 2002. These issues were previously before the Board. In January 2019, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board found that the Veteran should be afforded new VA examinations for his service-connected disabilities as over four years have elapsed since the last VA examinations in December 2014. Following evidentiary development, the VA Appeals Management Center (AMC) granted increased evaluations for both claims, from 10 percent to 20 percent, for the Veteran’s service-connected lumbar strain and service-connected cervical curvature with degenerative disc disease in a supplemental statement of the case (SSOC) issued in April 2014. A corresponding rating decision issued the same month also granted separate ratings for the Veteran’s left lower extremity radiculopathy and right upper extremity radiculopathy. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran’s lumbar strain and cervical curvature with degenerative disc disease are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. He is in receipt of 20 percent ratings for both service-connected disabilities with separate ratings for left lower extremity radiculopathy rated at 20 percent effective August 27, 2014, and right upper extremity radiculopathy rated at 40 percent effective August 28, 2014. 38 C.F.R. § 4.124a, DCs 8512, 8520. A rating of 30 percent is warranted when the evidence demonstrates: forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A rating of 40 percent is warranted when the evidence demonstrates: unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire spine. Id. Additionally, spine disabilities based intervertebral disc syndrome (IVDS) with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating under DC 5243 is warranted when the evidence demonstrates: incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a, DC 5243. Factual Background On August 27, 2014, the Veteran submitted a claim of service connection for back pain due to disk protrusions. He also submitted medical records showing significant abnormality in the cervical spine including disc protrusion in C3-C4, C4-C5, and C5-C6. The medical evidence did not include records relevant to the Veteran’s lumbar spine. On August 28, 2014, the Veteran called to add that he had a “cervical condition, back condition, and pinched nerves.” In December 2014, the Veteran clarified that the pinched nerve was in the neck. The Veteran was afforded a VA examination for his neck in December 2014. The examiner noted that the Veteran was diagnosed as having cervical curvature with degenerative disc disease between 1995 and 1996. Forward flexion ended at 40 degrees with evidence of pain at 40 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions, with no decrease in forward flexion. There was no localized tenderness or pain on palpation for joints/soft tissue of the cervical spine, no guarding or muscle spasms of the cervical spine, and his muscle strength was all normal with no atrophy. His reflexes were all normal and the sensory examinations showed all normal results. The examiner did not observe any radicular pain or signs or symptoms due to radiculopathy, any neurological abnormalities, or intervertebral disc syndrome (IVDS). The examiner remarked that there was no change in diagnosis from the established diagnosis of cervical curvature with degenerative disc disease. The Veteran was also afforded a VA examination for his lumbar spine in December 2014. The examiner observed that the Veteran was diagnosed as having a lumbar sprain in 1992 or 1996. The Veteran described flare-ups as pain when standing for a long period of time. His forward flexion ended at 80 degrees with evidence of pain at 80 degrees. His range of movement did not decrease after 3 repetitions and there was no additional limitation in range of motion following repetitive-use testing. There was no evidence of localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine, and his strength was normal with no atrophy. His reflexes were normal and there was no radicular pain or any other signs or symptoms due to radiculopathy. No neurological abnormalities were detected, and the Veteran did not have IVDS. The examiner remarked that the Veteran’s posture and gait were within normal limits, and while there were contributing factors of pain, weakness, fatigability and/or incoordination, there were no additional limitation of functional ability during flare-ups or repeated use over time. In a March 2015 rating decision, the RO continued both the 10 percent rating for the Veteran’s cervical curvature with degenerative disc disease (also claimed as pinched nerve) and the 10 percent rating for lumbar strain. The Veteran was notified of the decision and his appellate rights in a March 2015 letter. In August 2015, the Veteran submitted private medical records showing treatment for his back and neck. A disc bulge was found in L5-S1, with joint hypertrophy and ligamentum flavum thickening at L2 through L5. Another document showed multilevel disc disease most pronounced at C2-C3, moderate neuroforaminal narrowing at C3-C4, and severe neuroforaminal narrowing at C5-C6. In August 2015, the Veteran submitted a Notice of Disagreement (NOD) that, in pertinent part, asked for a 100 percent rating for both lumbar strain and cervical curvature with degenerative disc disease. In an October 2016 Statement of the Case (SOC), the RO continued the 10 percent ratings for both claims. The Veteran submitted a VA Form 9 in November 2016 citing previously submitted medical evidence. In January 2019, the Board found that the most recently afforded VA examinations were in December 2014 and that new examinations were necessary as over four years had elapsed since. The Board also directed the RO to ask the Veteran to complete a VA Form 21-4142 for all physicians and facilities noted on his November 2016 VA Form 9. With regard to the claims, the Board directed the examiners to provide information as to any associated objective neurologic abnormalities. The RO asked the Veteran to complete and return a VA Form 21-4142 in January 2019, March 2019, and in September 2019. The Veteran did not return a completed VA Form 21-4142. In June 2019, the Veteran was afforded a VA examination for his cervical curvature with degenerative disc disease and lumbar strain. The examiner diagnosed the Veteran as having cervical curvature with degenerative disc disease and radiculopathy of the right upper extremity since 2011. The Veteran’s forward flexion of his cervical spine was to 30 degrees, with no additional loss of function or range of motion after three repetitions. Pain caused limited functional ability with repeated use over a period of time, but the Veteran’s forward flexion remained unchanged, stopping at 30 degrees. The examiner indicated that the examination was conducted during a flareup, again with forward flexion to 30 degrees. Muscle spasm was observed but did not result in abnormal gait or spinal contour. Muscle strength was normal with no muscle atrophy, and the Veteran’s reflexes and sensory examination results were normal. The examiner found that the Veteran had moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the right upper extremity. The C8/T1 nerve roots on the right were involved, and there was mild radiculopathy on the right side. The examiner did not find any ankylosis of the spine nor any other neurological abnormalities related to the cervical spine. There was no IVDS of the cervical spine, and the examiner remarked that there was objective evidence of pain on passive range motion testing and non-weight bearing testing. The Veteran was diagnosed as having lumbosacral strain during since 2011, and the Veteran reported that he had severe pain preventing him from performing job-related tasks during flare-ups. The Veteran’s forward flexion was to 40 degrees, with no additional loss of function after three repetitions. The Veteran was also examined immediately after repetitive use over time and during flare-up, but his forward flexion did not change. The Veteran had muscle spasm that did not result in abnormal gait or abnormal spinal contour, and his muscle strength was normal with no atrophy. His reflexes and sensory examination results were normal. The Veteran had a positive left straight leg raising test, with moderate constant pain, mild paresthesias and/or dysesthesias in the left lower extremity. There were no other signs or symptoms of radiculopathy, and there was involvement of the left L4/L5/S1/S2/S3 nerve roots. The Veteran’s resulting left radiculopathy was mild, and there was no ankylosis. The examiner did not find any other neurologic abnormalities or IVDS of the thoracolumbar spine. In the remarks, the examiner found objective evidence of pain on passive range of motion testing and non-weight bearing testing. In an April 2020 rating decision, the RO granted an increased rating of 20 percent for both his lumbar strain and his cervical curvature with degenerative disc disease. The RO also granted separate ratings for the Veteran’s left lower extremity radiculopathy and right upper extremity radiculopathy. A corresponding SSOC was issued in April 2020. 1. Entitlement to a rating greater than 20 percent for lumbar strain The Veteran contends that he is entitled to a maximum rating for his service-connected lumbar strain. As discussed above, he is in receipt of a 20 percent for the entire period on appeal, with a separate evaluation for left lower extremity radiculopathy, also for the entire period on appeal. In order to receive a higher evaluation, the Veteran’s lumbar strain would have to have forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. Alternatively, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating greater than 20 percent under DC 5243, if the Veteran has IVDS and is rated based on incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. There is no medical evidence of record showing that the Veteran has ankylosis of the thoracolumbar spine or IVDS. Medical examinations also show that the Veteran’s forward flexion was to 40 degrees or greater during the entire period on appeal. Therefore, the Veteran is currently in receipt of the highest rating warranted by his manifested symptoms of lumbar strain. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 20 percent for the Veteran’s service-connected lumbar strain have not been met or more nearly approximated. The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a rating greater than 20 percent for cervical curvature with degenerative disc disease The Veteran contends that he is entitled to a maximum rating for his service-connected cervical curvature with degenerative disc disease. As discussed above, he is in receipt of a 20 percent for the entire period on appeal, with a separate evaluation for right upper extremity radiculopathy, also for the entire period on appeal. In order to receive a higher evaluation, the Veteran’s cervical curvature with degenerative disc disease would have to have forward flexion to 15 degrees or less or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, DC 5237. Alternatively, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating greater than 20 percent under DC 5243, if the Veteran has IVDS and is rated based on incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. There is no medical evidence of record showing that the Veteran has ankylosis of the cervical spine or IVDS. Medical examinations also show that the Veteran’s forward flexion was to 30 degrees or greater during the entire period on appeal. Therefore, the Veteran is currently in receipt of the highest rating warranted by his manifested symptoms of cervical curvature with degenerative disc disease. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 20 percent for the Veteran’s service-connected cervical curvature with degenerative disc disease have not been met or more nearly approximated. The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.