Citation Nr: 21003780 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 03-32 125 DATE: January 22, 2021 ORDER A rating in excess of 20 percent for cervical spine disability is denied. REMANDED Service connection for right upper extremity (RUE) cervical radiculopathy is remanded. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s cervical spine disability produced forward flexion to 15 degrees, favorable ankylosis of the entire cervical spine, or incapacitating episodes requiring physician prescribed bed rest having a total duration of at least 4 weeks during a 12 month period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from July 1970 to May 1974. The Veteran has a pending claim for entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 19, 2015. This claim was remanded to the RO and will be adjudicated in a separate decision. Entitlement to rating in excess of 20 percent for cervical spine disability The Veteran is assigned a 20 percent rating for his service-connected cervical spine disability. The Veteran contends he is entitled to a higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. For VA compensation purposes, 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. Id. at Note 2. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. For purposes of ratings under DC 5243, an incapacitating episode is 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. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The preponderance of the evidence is against finding the Veteran’s cervical spine disability produced forward flexion to 15 degrees, favorable ankylosis of the entire cervical spine, or incapacitating episodes requiring physician prescribed bed rest having a total duration of at least 4 weeks during a 12 month period. A review of the evidence shows at a July 2014 VA examination of the cervical spine, the Veteran reported constant neck pain, with pain on average of 5 to 6 out of 10. He reported pain increasing to 10 out of 10 with certain movements, to include rapid head movements and looking down to read. The Veteran described flare-ups as decreased range of motion of the neck and increased pain with sudden movements. Range of motion testing showed forward flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 70 degrees. There was no evidence of ankylosis. VA acupuncture visits in September 2014 and October 2014 VA noted cervical range of motion was less than 50 percent normal in all planes. At a January 2016 VA examination of the cervical spine, the Veteran reported constant neck pain, described as sharp with axial rotation. Range of motion testing showed forward flexion to 30 degrees, extension to 45 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 60 degrees. There was no evidence of ankylosis. At an August 2017 VA examination of the cervical spine, the Veteran reported neck pain and limited motion worsened since his previous VA examination. The Veteran described frequent flare-ups, almost daily, if he rapidly moves his neck. The Veteran described functional loss as the inability to move his neck without pain, and pain and spasms preventing him from working. Range of motion testing showed forward flexion to 40 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 50 degrees. There was no evidence of ankylosis. At a June 2018 VA treatment visit, cervical range of motion was noted to be 65 percent for flexion, 10 percent with sharp pain for extension, 5 percent with sharp pain for right lateral flexion, 10 percent for left lateral flexion, 15 percent with sharp pain for right rotation, and 70 percent for left rotation. A July 2018 VA addendum opinion stated that his best estimate for additional functional loss during a flare-up or after repeated use over time would be an additional 10 degrees loss in each motion: forward flexion, extension, lateral flexion, and lateral rotation. At a July 2019 VA examination of the cervical spine, the Veteran described flare-ups as intense pain of 7 to 8 out of 10. Regarding range of motion testing, the clinician opined the Veteran’s symptoms and function were overly exaggerated. The clinician stated that on initial focused testing of cervical spine, the Veteran had significantly limited range of motion of the neck. The clinician stated that as the examination continued, he observed the Veteran was able to move neck with ease to complete full range of motion. In August 2019, the Veteran submit a statement expressing significant disagreement with the July 2019 VA examination report. He stated the examination lasted 20 minutes. He reviewed the examination report and stated there were numerous inconsistencies. Specifically, he stated during range of motion testing he moved his neck to the left, but was unable to move it to the right. He stated the examiner stopped the range of motion testing and did not perform repetitive testing. The Veteran requested a new examination. At an October 2020 VA examination of the cervical spine, the Veteran reported cervical pain 24 hours a day, 7 days a week. He reported he could turn his head slightly and pain was greater than a 10. He reported always dealing with pain, with increased pain two days a week. He described a flare-up as pain of 10 out of 10. He reported a flare-up can be precipitated by anything, for example turning his head, then he is out for a day or a couple days. Range of motion testing showed forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. The clinician stated the examination was being conducted during a flare-up. As such, range of motion during a flare-up was reflected by the range of motion testing performed and reported at the examination. The clinician stated range of motion testing was not performed after repeated use over time, but opined range of motion would be consistent with the limitations during a flare-up. There was no evidence of ankylosis. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a rating in excess of 20 percent, the evidence must show for forward flexion of the cervical spine to 15 degrees or favorable ankylosis of the entire cervical spine. The evidence does not support, nor has the Veteran contended, favorable ankylosis of the entire cervical spine. The preponderance of the evidence does not support finding forward flexion of the cervical spine to 15 degrees or less. The Board gives probative weight to the October 2020 VA examination range of motion findings. The examiner stated the testing was conducted during a flare-up, producing forward flexion to 25 degrees. The examiner opined that pain resulting from repeated use over time would also produce forward flexion to 25 degrees. The Board finds this opinion credible because it was made after a physical examination and opined on the additional functional impact that pain, flare-ups, and repeated use over time. The Board considered the 2014 VA acupuncture visits noting cervical range of motion was less than 50 percent normal in all planes. This statement does not support finding forward flexion to 15 degrees or less. Range of motion testing performed prior and following these visits was not consistent with flexion to 15 degrees or less. The Board considered the July 2018 VA addendum opinion that additional functional loss during a flare-up or after repeated use over time would result in an additional 10 degrees loss in each plane of motion. Applying this opinion to range of motion testing at VA examinations not performed during a flare-up or repeated use over time would not result in a finding of forward flexion to 15 degrees or less. Of note, the Board gives no probative weight to the July 2019 VA examination opinion that the Veteran’s symptoms and function were overly exaggerated. The Veteran had significant disagreements with the examination report. Additionally, there are numerous examinations prior to and following the July 2019 examination to provide enough evidence for the Board to adjudicate the claim. Under the Formula for Rating IVDS Based on Incapacitating Episodes, to warrant a rating in excess of 20 percent, the evidence must show IVDS with incapacitating episodes requiring physician prescribed bed rest having a total duration of at least 4 weeks during a 12 month period. There is not competent evidence showing the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Regarding associated neurological abnormalities, there is competent evidence the Veteran may have associated RUE neurological abnormality. As there is conflicting competent evidence as to the nature and etiology of the Veteran’s RUE symptoms, the Board remanded the issue for further development. The Veteran is already service connected for chronic headaches. The Board does not find competent evidence of other neurological abnormalities associated with the Veteran’s service-connected cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent for cervical disability. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Service connection for RUE cervical radiculopathy The Veteran contends his RUE symptoms are neurological manifestations of his service-connected cervical spine disability. There is conflicting competent evidence as to whether the Veteran’s RUE symptoms are neurological manifestations of his service-connected cervical spine disability. An October 2018 VA examination commented the Veteran’s right shoulder weakness and pain are from cervical radiculopathy, and his right arm pain and weakness are affected by rotator cuff tendonitis, myofascial pain syndrome, an unknown central nervous system issue and cervical radiculopathy. An October 2020 VA examination stated the Veteran’s right arm pain and spasms do not appear to be due to cervical radiculopathy. The clinician stated previous imaging, EMG, and treatment notes do not support a diagnosis of radiculopathy. In December 2020, the Veteran’s attorney cited to clinical assessments of cervicobrachial compression syndrome. See November 2014, May 2015, and July 2015 VA treatment visits. An August 2020 EMG showed evidence of previous denervation in a single C8 muscle that suggested old cervical radiculopathy. The Board requests an addendum medical opinion to address whether there are any RUE neurological manifestations of his service-connected cervical disability. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent or greater probability) any of the Veteran’s right upper extremity symptoms are neurological manifestations of his service-connected cervical spine disability. An in-person examination is not required unless deemed necessary by the clinician. The clinician should consider the October 2018 VA examination commenting the Veteran’s right shoulder weakness and pain are from the cervical radiculopathy, and his right arm pain and weakness are affected by rotator cuff tendonitis, myofascial pain syndrome, an unknown central nervous system issue, and cervical radiculopathy; the October 2020 VA examination commenting the Veteran’s right arm pain and spasms do not appear to be due to cervical radiculopathy; the November 2014, May 2015, and July 2015 VA treatment visit assessments of cervicobrachial compression syndrome; and the August 2020 EMG showing evidence of previous denervation in a single C8 muscle that suggested old cervical radiculopathy. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.