Citation Nr: 21000599 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-53 271A DATE: January 5, 2021 ORDER A rating in excess of 10 percent for lumbar degenerative arthritis is denied. A 20 percent rating, but no more, for cervical degenerative arthritis and disc disease is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from August 1985 to August 1989 and from December 2002 to February 2007. 2. A low back disability has been manifested by subjective complaints of pain, muscle spasms, difficulty walking for more than one hour and sitting for more than 15 minutes; objective findings include forward flexion greater than 60 degrees and guarding with no abnormal gait. 3. A cervical spine disability has been manifested by subjective complaints of pain, swelling, difficulty turning his head during flare-ups; objective findings include a combined range of motion of greater than 170 degrees and an abnormal gait or spinal column due to muscle spasms. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbar degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2020). 2. The criteria for a 20 percent rating, but no more, for cervical degenerative arthritis and disc disease have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Spinal 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, DCs 5237-5243. The Veteran has been rated under DC 5237 and 5242 and the Board will consider all relevant diagnostic codes. Lumbar Spine Disability A rating in excess of 10 percent for a thoracolumbar spine disability will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • 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 (all 20 percent). Turning to the medical evidence, the Veteran has reported back and neck pain since a vehicle accident while on active duty in 2005. Since 2015, he has complained of stiffness in the morning with a pain level of 4-8/10. During the VA examinations in 2015 and 2018, he reported he had flare-ups daily. He also reported he could not sit for more than an hour due to the pain. In the January 2018 VA examination he reported occasional swelling. The low back disability was originally rated at 10 percent in 2008. He has been reevaluated several times since 2008 and his rating has remained at 10 percent. As to range of motion, at the December 2015 VA examination, which was conducted during a flare-up, range of motion (ROM) testing was normal. In the January 2018 VA examination, forward flexion was to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30, and right and left lateral rotation to 30 degrees. The combined ROM was 210 degrees. The abnormal ROM contributed to functional loss of the Veteran by limiting sudden, heavy movements. There was no pain during either examination. The Veteran performed three repetitions without further loss of function or ROM in both examinations. Based on the above, the medical evidence does not support a higher rating. As noted, forward flexion was to 70 degrees. As flexion was over 60 degrees, the evidence does not support a higher rating on this basis. In addition, the combined ROM was 210 degrees, which is well about the 120 degrees threshold necessary for a higher rating. In addition, clinical records do not reflect limitation of flexion worse than shown in the VA examination. As to muscle spasms and guarding, at the December 2015 VA examination, neither muscle spasms nor guarding were reported; however, the Veteran had muscle spasms and guarding in the January 2018 VA examination. None of the muscle spasms or guarding were severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was found during the examination nor in the clinical records in the. Accordingly, the medical evidence does not support a higher rating on this basis. Cervical Spine Disability A rating in excess of 10 percent for a cervical spine disability will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 15 degrees but not greater than 30 degrees (20 percent) or· • the combined range of motion of the thoracolumbar spine not greater than 170 degrees (20 percent). • muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis Turning to the medical evidence, the Veteran has consistently reported pain and discomfort at the base of his neck. In the treatment records and at the VA examinations, he reported pain level as 4-7/10. He had swelling, soreness and difficulty turning his head during flare-ups. He reported he had to take frequent breaks at work to massage his neck. He had flare-ups two to three times per week. As to ROM, forward flexion was to 45 degrees in the December 2015, January 2018, and October 2015 VA examinations. The combined ROMs were 210, 275, and 300, respectively. These examinations were performed during a flare-up and there was no pain noted during the examinations. This evidence does not support a higher rating as forward flexion was greater than 30 degrees and the combined ROM was greater than 170 degrees, even considering functional impairment due to pain. Therefore, a rating greater than 10 percent is not warranted based on ROM. As to muscle spasms and guarding, neither were shown in the December 2015 or January 2018 VA examinations; however, in the October 2018 VA examination, the examiner noted that the Veteran had muscle spasms in his neck resulting in an abnormal gait or abnormal spine contour. The etiology was related to the degenerative disc disease and degenerative arthritis of the spine. Based on muscle spasm resulting in an abnormal gait, the evidence supports a 20 percent rating. However, a rating in excess of 20 percent is not warranted. Specifically, the evidence does not show forward flexion limited to 15 degrees or favorable ankylosis of the cervical spine to warrant a 30 percent rating. As noted, forward flexion has consistently been reported as 45 degrees. Moreover, while limitation of motion was shown, ankylosis (a fixation of the spine) has not been shown in either the VA examinations or the clinical records. Therefore, a rating in excess of 20 percent is not warranted. The Board has also considered the Veteran’s lay statements that his disabilities are worse. He is competent to report symptoms and his statements have been weighed along with the pertinent medical opinions in conjunction with the evaluations. In sum, the appeal for a rating in excess of 10 percent for lumbar generative arthritis is denied and the appeal for a 20 percent rating, but no more, for cervical degenerative arthritis and disc disease is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.