Citation Nr: 20039986 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 14-06 271 DATE: June 11, 2020 ORDER Entitlement to an increased disability evaluation for residuals of fracture C6 with degenerative disc disease at C5-6, currently rated as 20 percent disabling, is denied. Entitlement to an initial 40 percent disability rating for lumbar spondylosis, degenerative arthritis, and facet joint arthritis, for the rating period prior to February 10, 2016, is granted. Entitlement to an increased disability evaluation for lumbar spondylosis, degenerative arthritis, and facet joint arthritis, rated as 40 percent disabling since February 10, 2016, is denied. FINDINGS OF FACT 1. The Veteran’s fracture C6 with degenerative disc disease at C5-6is manifested by pain, but without muscle spasm or guarding productive of abnormal spinal contour; the combined range of motion of the cervical spine was greater than 170 degrees, with forward flexion limited to 40 degrees. 2. For the entire rating period on appeal, the Veteran’s lumbar spondylosis, degenerative arthritis, and facet joint arthritis, is manifested by pain, with muscle spasm, weakness, and guarding productive of an abnormal gait. Forward flexion is limited to no more than 40 degrees, without ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for fracture C6 with degenerative disc disease at C5-6 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2019). 2. The criteria for a 40 percent disability evaluation, but no higher, for lumbar spondylosis, degenerative arthritis, and facet joint arthritis for the rating period prior to February 10, 2016, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2019). 3. The criteria for a disability evaluation in excess of 40 percent for lumbar spondylosis, degenerative arthritis, and facet joint arthritis have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Marine Corps from October 1969 to April 1970 and from November 1971 to April 1973. This matter comes before the Board of Veterans’ Appeals (Board or BVA) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The July 2013 rating decision granted the Veteran’s claim of entitlement to service connection for his lumbar spondylosis, degenerative arthritis, and facet joint arthritis and assigned a 20 percent disability evaluation, effective September 21, 2012, as well as denied the Veteran’s claim for a disability rating greater than 20 percent for residuals of fracture C6 with degenerative disc disease at C5-6. In a May 2016 rating decision, the RO granted the Veteran an increased, 40 percent disability rating for his lumbar spondylosis, effective February 10, 2016. As the Veteran has not been granted the maximum benefits allowed, the claim for an increased disability rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This matter was remanded in March 2018 for additional development and due process considerations. A supplemental statement of the case was most recently issued in November 2019. The case was returned to the Board for appellate consideration. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 1. Entitlement to an increased disability evaluation for residuals of fracture C6 with degenerative disc disease at C5-6, currently rated as 20 percent disabling. The Veteran has been assigned a 20 percent disability rating for residuals of fracture C6 with degenerative disc disease at C5-6 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the Veteran’s February 2013 VA examination report reflects that the Veteran has intervertebral disc syndrome; however, the April 2016 and October 2019 VA examinations and VA treatment records for the rating period on appeal indicates that the Veteran does not have intervertebral disc syndrome. Regardless, the Board points out that all of the Veteran’s VA examination reports indicate that the Veteran does not experience incapacitating episodes. Moreover, the Veteran’s VA treatment records do not show that the Veteran has experienced any incapacitating episodes as defined by the regulations; no physician has prescribed bed rest as treatment for the Veteran’s residuals of fracture C6 with degenerative disc disease at C5-6. Thus, even if intervertebral disc syndrome were present, it would not be compensable. As such, the Board will consider the Veteran’s symptomatology in relation to the general rating formula. According to the general rating formula, a 20 percent rating is warranted 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. A 30 percent evaluation is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. The Board finds that the criteria for a disability rating greater than 20 percent have not been met or more nearly approximated for any part of the rating period. At the February 2013 VA examination, the Veteran had flexion to 30 degrees, extension to 25 degrees, lateral rotation to 60 degrees bilaterally, and lateral flexion to 35 degrees bilaterally. During the April 2016 VA examination, the Veteran had flexion to 30 degrees and extension to 30 degrees; he had lateral rotation to 30 degrees bilaterally, and lateral flexion to 35 degrees bilaterally. At the most recent, October 2019 VA examination, he had flexion to 30 degrees, extension to 30 degrees, lateral rotation to 50 degrees bilaterally, and lateral flexion to 30 degrees bilaterally. VA treatment records reflect that the Veteran had complaints of chronic neck pain and limitation of motion, and the VA examination report reflects that the Veteran’s range of motion was limited due to pain. However, the Veteran’s VA treatment records and VA examination reports do not demonstrate that Veteran’s range of motion meets the criteria for a 30 percent rating; the Veteran did not have forward flexion to 15 degrees or less or favorable ankylosis of the entire cervical spine. The findings of the February 2013, April 2016, and October 2019 VA examination reports are consistent with the Veteran’s VA treatment records. The VA examination reports reflect that the Veteran had pain on motion, with additional loss of motion; the October 2019 VA examination also showed that the Veteran had tenderness on palpation and the April 2016 VA examination indicated that the Veteran had muscle spasm or guarding; however, the Veteran did not have abnormal gait or spinal contour. With regard to functional loss, the Board finds that the Veteran’s current 20 percent rating adequately compensates him for his functional loss due to pain. The Veteran reported that he has flare-ups that result in increased pain, and pain on weight bearing, but testing did not show functional loss due to pain or repetitive use beyond that which is contemplated by his current, 20 percent disability rating. Likewise, the Veteran had full muscle strength and normal reflexes. Consequently, additional compensation due to functional loss is not warranted. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of a separate evaluation for left upper extremity radiculopathy, and as such, it is not for consideration here. In light of the foregoing, the Board finds that a rating greater than 20 percent disability evaluation for the service-connected residuals of fracture C6 with degenerative disc disease at C5-6 is not warranted. 2. Entitlement to an increased disability rating for lumbar spondylosis, degenerative arthritis, and facet joint arthritis, initially rated as 20 percent disabling. 3. Entitlement to an increased disability evaluation for lumbar spondylosis, degenerative arthritis, and facet joint arthritis, rated as 40 percent disabling since February 10, 2016. The Veteran has been assigned an initial 20 percent disability rating for his lumbar spondylosis, degenerative arthritis, and facet joint arthritis for the rating period prior to February 10, 2016 and a 40 percent disability evaluation for the period since February 10, 2016, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. According to the general rating formula, a 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a 40 percent disability evaluation for the entire rating period on appeal. In this regard, the Board notes that the February 2013 VA examination report reflects that the Veteran had flexion to 60 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. At the next, April 2016 VA examination, he had flexion to 30 degrees, 10 degrees extension, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. At the October 2019 VA examination, the Veteran had flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally, with pain. In all instances, he had pain on motion, without decreased range of motion upon repetitive use testing. At the February 2013 VA examination, he had tenderness to palpation, without abnormal gait. In April 2016 and October 2019, he had tenderness to palpation, and muscle spasm, but he did not experience abnormal gait or spinal contour in October 2019. He had functional loss due to pain at all of his VA examinations, but only the April 2016 VA examination reflects functional loss due to weakness, lack of endurance, and fatigability. In accordance with the above, the Veteran is entitled to a 40 percent disability evaluation, but no higher, for his service-connected lumbar spondylosis, degenerative arthritis, and facet joint arthritis for the entire rating period on appeal. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. The evidence does not demonstrate the presence of ankylosis. The Board has considered the lay evidence of pain. However, that evidence when accepted as correct does not establish that there is ankylosis as required for a higher rating. As previously noted, throughout the rating period on appeal, the Veteran had flexion to no worse than 30 degrees on repetitive use testing. The Veteran does not require the use of assistive devices for locomotion. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current ratings are based on the objectively demonstrated reduced motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Further, the Veteran is at the maximum evaluation for limited motion. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the case here. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The evidence also shows that the Veteran’s lumbar spondylosis, degenerative arthritis, and facet joint arthritis has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran’s VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran had normal sensory examination and negative straight leg raising, without evidence of radiculopathy. As the Veteran does not experience any lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the Veteran’s service-connected lumbar spondylosis, degenerative arthritis, and facet joint arthritis is entitled to a 40 percent disability rating, but no higher, for the entire rating period on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.