Citation Nr: 21002235 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-56 760 DATE: January 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s degenerative disc disease of the cervical spine did not produce or approximate forward flexion of 15 to 30 degrees, combined range of motion not greater than 170 degrees, or guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative disc disease of the cervical spine 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2019. The Veteran’s claim was remanded for additional development. The case is now again before the Board for further appellate action. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. In March 2015, the Veteran filed his current claim for a rating in excess of 10 percent for degenerative disc disease of the cervical spine. The Veteran contends he is entitled to a higher rating, as he claims that his symptoms are worse than reflected by his current rating. The Veteran’s degenerative disc disease of the cervical spine is assigned a 10 percent rating under Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 rating 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 rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Turning to the evidence, the Veteran was afforded a VA examination of his cervical spine in June 2015. He was diagnosed with degenerative disc disease and degenerative joint disease of the cervical spine. A review of range of motion testing shows showed forward flexion to 45 degrees, extension to 45 degrees, left lateral flexion to 20 degrees, right lateral flexion to 25 degrees, left lateral rotation to 60 degrees, and right lateral rotation to 65 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions without any functional loss. The examination was not conducted immediately after repetitive use over time or during a flare up and was unable to offer an opinion without mere speculation regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time or during a flare up. The examiner’s rationale for not being able to provide an opinion for each of these factors without mere speculation was that he would need to observe the Veteran after repeated use or during a flare up to determine the impacts. The examiner reported that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The Board finds that the June 2015 VA examination was inadequate as the examiner failed to estimate the degree of additional range-of-motion loss after repeated use. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the examiner made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss after repeated use. Therefore, the Board finds the June 2015 VA examination of the Veteran’s cervical spine to be inadequate for rating purposes. The Veteran was afforded another VA examination of his cervical spine in September 2020. The Veteran reported he did not experience flare ups and described his current symptoms as pain in the neck. The Veteran reported he had some loss of range of motion and has pain mostly when he tries to lie down or extend his neck. A review of range of motion testing shows forward flexion to 45 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 70 degrees, and right lateral rotation to 80 degrees. The examiner reported that there was evidence of pain with extension that did not result in or cause functional loss. She also noted that the Veteran has a difficult time looking up. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions without any functional loss. The Veteran was not examined immediately after repetitive use over time. The examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner estimated the Veteran’s range of motion after repetitive use over time was the following: forward flexion to 45 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 70 degrees, and right lateral rotation to 80 degrees. The Veteran was not examined during a flare up. Regarding flare ups, the examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. The examiner estimated the Veteran’s range of motion during flare ups was the following: forward flexion to 45 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 80 degrees. Testing of muscle strength, deep tendon reflexes, and sensation to light touch were all normal. The Veteran did not experience muscle spasms or guarding. The examiner reported that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine or invertebral disc syndrome of the cervical spine. The examiner noted that the cervical spine disorder would impact the Veteran’s ability to lift heavy objects. After consideration of the entire record and relevant law, the Board finds that a rating in excess of 10 percent for the Veteran’s service-connected degenerative disc disease of the cervical spine under Diagnostic Code 5237 is not warranted. During his September 2020 VA examination, range of motion testing reflected forward flexion of the Veteran’s cervical spine to 45 degrees. The examiner reported that the Veteran did not experience any additional loss of range of motion due to repeated use over time and estimated left lateral rotation was limited to 30 degrees during flare ups. Moreover, the VA examiner determined the Veteran did not have invertebral disc syndrome and found no evidence of muscle spasms or guarding. The Board had considered the Veteran’s lay statements of record that he experienced increased pain in his neck due to his cervical spine disability. The Veteran is clearly competent to report observable symptomatology. However, the medical severity of the cervical spine disability falls outside the realm of common knowledge of a lay person. Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran’s cervical spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his cervical spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 10 percent for degenerative disc disease of the cervical spine. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.