Citation Nr: 21061929 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-36 276A DATE: October 5, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease (DDD) is denied. Entitlement to a disability rating in excess of 20 percent for lumbar spine DDD is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to January 19, 2017, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's cervical spine DDD manifested in, at worst, forward flexion greater than 15 degrees but not greater than 30 degrees. 2. Throughout the appeal period, the Veteran's lumbar spine DDD manifested in, at worst, forward flexion greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for cervical spine DDD are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242 (2020). 2. The criteria for a disability rating in excess of 20 percent for lumbar spine DDD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. Unfortunately, he died in June 2017. The appellant is the Veteran's surviving spouse who has been properly substituted into the appeal. 38 C.F.R. § 3.1010. The matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veteran's Affairs (VA) regional office (RO). During the pendency of the appeal, the Veteran was awarded a TDIU effective January 19, 2017. See May 2017 Rating Decision. As the TDIU issue was based on the Veteran's lumbar and cervical spine disabilities, the Board finds that the issue of TDIU is a part of the instant appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings During his life, the Veteran contended that he was entitled to higher disability ratings because: he received injections for pain every three months alternating between his neck and back; moving his head caused him great pain and dizziness; and his lower back pain prevented him from driving more than 20 miles at a time without rest and prevented him from performing any type of labor. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. 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 (musculoskeletal system); 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). The Veteran's cervical and lumbar spine DDD are evaluated under Diagnostic Code 5242, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. In the General Formula, 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 while unfavorable ankylosis involves fixation of the spine in flexion or extension. Id. at Note 5. 1. Entitlement to an increased rating in excess of 20 percent for cervical spine DDD. As relevant to the cervical spine, the General Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id. at Note 2. Associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Id. at Note 1. The Veteran underwent VA examination in January 2015. The Veteran reported daily neck pain and functional loss or impairment with flare-ups one to two times a week resulting in the inability to engage in any activity until his pain medication started to work; this would take up to two hours. Range of motion testing showed the Veteran had forward flexion of the cervical spine to 30 degrees and a combined range of motion of 105 degrees. There was objective evidence of pain noted during the examination on rest and with weight bearing. There was no guarding or muscle spasm. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups nor with repeated use over time. There was no ankylosis or intervertebral disc syndrome and the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There were no other related neurologic abnormalities. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for cervical spine DDD. Forward flexion of the cervical spine was greater than 15 degrees and there was no ankylosis. The examiner found that during flare-ups and with repeated use over time, functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. Thus, the range of motion findings on examination depicted the estimated range of motion during a flare-up and after repetitive use over time. The Board acknowledges the Veteran's lay reports of daily pain, pain during flare-ups, and periodic injections for pain, during his life. However, even considering the Veteran's lay reports of symptoms, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or, favorable nor unfavorable ankylosis of the entire cervical spine. Likewise, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's assertions coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may have believed that he met the criteria for the next higher rating, his assertions along with the medical findings do not meet the schedular requirements for a higher evaluation than assigned. Considering the foregoing, the Board finds the preponderance of the evidence weighs against finding that the Veteran's symptoms resulted in the level of impairment required for a higher disability rating. The Board has considered the benefit of the doubt rule; however, that rule is inapplicable as the evidence preponderates against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The criteria for a disability rating in excess of 20 percent for cervical spine DDD are not met; the claim is denied. 2. Entitlement to an increased rating in excess of 20 percent for lumbar spine DDD. As relevant to the thoracolumbar spine, the General Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id. at Note 2. Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note 1. The Veteran underwent VA examination in January 2015. The Veteran reported back symptoms similar to his neck symptoms mentioned above. Range of motion testing showed the Veteran had forward flexion of 60 degrees and combined range of motion of 105 degrees. There was objective evidence of pain noted during the examination on rest and with weight bearing. There was no guarding or muscle spasm. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups nor with repeated use over time. There was no ankylosis or intervertebral disc syndrome and the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There were no other related neurologic abnormalities. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine DDD. Forward flexion of the lumbar spine was greater than 30 degrees and there was no ankylosis. The examiner found that during flare-ups and with repeated use over time, functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. Thus, the range of motion findings on examination depicted the estimated range of motion during a flare-up and after repetitive use over time. The Board acknowledges the Veteran's lay reports of daily pain, pain during flare-ups, and periodic injections for pain, during his life. However, even considering the Veteran's lay reports of symptoms, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the lumbar spine to 30 degrees or less; or, favorable nor unfavorable ankylosis of the entire lumbar spine. Likewise, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's assertions coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may have believed that he met the criteria for the next higher rating, his assertions along with the medical findings do not meet the schedular requirements for a higher evaluation than assigned. Considering the foregoing, the Board finds the preponderance of the evidence weighs against finding that the Veteran's symptoms resulted in the level of impairment required for a higher disability rating. The Board has considered the benefit of the doubt rule; however, that rule is inapplicable as the evidence preponderates against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The criteria for a disability rating in excess of 20 percent for lumbar DDD are not met; the claim is denied. REASON FOR REMAND In his May 2015 Notice of Disagreement, the Veteran asserted that he could not work due to symptomatology associated with his service-connected cervical and lumbar spine DDD. In a May 2017 rating decision, the RO granted the Veteran a TDIU effective January 19, 2017, the date on which the Veteran filed a VA Form 21-0966, Intent to File a Claim. However, even though the Veteran did not appeal the matter of entitlement to a TDIU prior to January 19, 2017, as it is part and parcel of the Veteran's increased ratings claims, it is still at issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For the period prior to January 19, 2017, the Veteran does not meet the schedular requirements for a TDIU set forth in § 4.16(a). As such, the Board may not consider the claim for a TDIU prior to January 19, 2017, in the first instance. Accordingly, remand is required for referral of the claim to the Director, Compensation Service, for extra-schedular consideration as the evidence raises the reasonable possibility that the Veteran was unemployable by reason of service-connected disabilities prior to January 19, 2017. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the issue of entitlement to an extra-schedular TDIU prior to January 19, 2017, to the Director of Compensation Service, for consideration pursuant to 38 C.F.R. § 4.16(b). A copy of the Director's decision on this claim must be included in the electronic claims file. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.L. Hamilton, 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.