Citation Nr: 21064820 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-38 201A DATE: October 21, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for cervical degenerative arthritis is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for residual calcific tendonitis status post left patella fracture (left knee) with arthritis is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) prior to May 31, 2007 is remanded. FINDING OF FACT The Veteran's cervical spine disability is not manifested by forward flexion to 15 degrees or less, or ankylosis of the entire spine. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for cervical degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Marine Corps from November 1981 to July 1995. This case comes before the Board of Veteran's Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In relevant part, the April 2005 decision denied increased evaluations for the neck and left knee disabilities. The Veteran initiated and perfected appeals on both matters in July 2006. However, in September 2008, correspondence from the Veterans Service Organization AMVETS was received, purporting to withdraw the appeals for increased rating. The withdrawal was accepted by the AOJ. In a May 2018 Board decision, a rating in excess of 10 percent for the left knee disability was denied; the Board specified that its jurisdiction arose in relation to a November 2010 claim for increase. The September 2008 withdrawal was noted to have cut off an earlier appeal stream. The Veteran appealed the May 2018 decision to the United States Court of Appeals for Veterans Claims (the Court). One part of that appeal, no longer at issue here, involved the effective date for the award of a 100 percent evaluation for posttraumatic stress disorder (PTSD); the discussion centered around the validity of the September 2008 withdrawal. Pursuant to a joint motion for remand, in September 2019 the Court vacated the Board's decision and remanded the matters for readjudication. In March 2020, the Board remanded the increased rating claim for a left knee disability for further development, and also directed development with regard to the validity of the withdrawal of appeals by AMVETS. That development resulted in a finding that the actions by AMVETS were invalid, as no power of attorney could be located granting them the authority to act on the Veteran's behalf. In a July 2021 decision, the Board recognized that the invalidation of the withdrawal also served to reinstate the appeal with regard to the cervical spine, and set a longer appeal period for the left knee. They were then remanded for readjudication by the AOJ, and issuance of a supplemental statement of the case (SSOC) to ensure consideration of all relevant evidence for the full appeal period. Additionally, the Board found a claim for TDIU prior to May 31, 2007, remained open and pending as part and parcel of the appeals for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter was remanded for an SSOC as well. Increased Rating for the Cervical Spine Disability Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings 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). As it pertains to the cervical spine, the General Rating Formula provides a 20 percent disability rating 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 disability rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 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. 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The Board notes during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453. The Veteran's cervical spine disability has been rated under Diagnostic Code 5242-5237. Changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral syndrome. It is also noteworthy that Diagnostic Code 5243 now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root; if that is not present, a rating under Diagnostic Code 5242 is to be assigned for all other disc diagnoses. The substantive criteria did not change. A March 2002 VA treatment note documented that the Veteran had occasional episodes of neck pain. He reported that his recent episode of neck pain started without any preceding trauma approximately 1 month prior. He described his pain as stiffness and aching. His rated his pain a 4/10 with occasional radiation to his bilateral shoulders. His pain was increased with excess activity which required rotation of the neck. In February 2005, the Veteran was afforded a VA examination. He was diagnosed with mild disc degeneration. He reported that his symptoms were intermittent and occurred about 3 times a week and lasted about 4 hours. He reported that his pain did not radiate to the upper extremities. He denied any paresthesias. He described his pain as aching, sticking, and sharp. The Veteran rated his pain a 7/10. His symptoms were brought on from physical activities. His pain improved with medication and rest. The Veteran had not lost any time of work because of his condition. He denied any periods of incapacitation. There was evidence of limited and painful motion in all direction. His range of motion (ROM) was 40 degrees with pain for flexion, 45 degree with pain for extension, 30 degrees with pain for right/left flexion, and 60 degrees with pain for right/left rotation. ROM was limited by pain, but was not limited by fatigue, weakness, lack of endurance, or incoordination. There was evidence of limited ROM of the cervical spine with mild trapezius spasm. The examiner noted that he should avoid using ladders, overhead reaching, and crawling. In October 2006, the Veteran was afforded a VA examination. He was diagnosed with intervertebral disc syndrome (IVDS). He reported that he had pain that radiated to the left upper extremity. The Veteran had pain associated with stiffness. His pain was described as cramping, aching, sticking, and sharp. He rated his pain a 7/10. His pain improved with rest and medication. He was able to function with medication. He had difficulty with pushing, pulling, lifting, driving, and sleeping. He denied any periods of incapacitation. There was evidence of limitation and painful motion in all directions. There was evidence of mild muscle spasm in the trapezii. There was no evidence of weakness or tenderness. His ROM was 35 degrees with pain for flexion, 25 degrees with pain for extension, 25 degrees with pain for right/left flexion, and 55 degrees with pain for right/left rotation. ROM was limited by pain and lack of endurance after repetitive use with pain having the major functional impact. His neck was not limited by fatigue, weakness, or incoordination after repetitive use. His motor strength and sensation were normal. The examiner noted that reflexes were hypoactive but symmetric. The examiner indicated that the Veteran should avoid using ladders, overhead reaching and crawling. An April 2007 VA treatment note documented that his pain was rated a 7/10. A May 2007 VA treatment note documented that the Veteran had some tightness in his neck. He had decreased ROM in his neck. His greatest limitation was head rotation and left lateral flexion. In September 2007, the Veteran was afforded a VA examination. He was diagnosed with IDVS. He reported that his pain was worse with walking or car rides. He felt that he had developed more limitation in his ROM over the years. There was left-sided paraspinal muscle spasm and tenderness noted. His ROM was 25 degrees with pain for flexion, 10 degrees with pain for extension, 10 degrees with pain for right/left lateral, and 50 degrees with pain for right/left rotation. After repetitive use or during flare-ups there was no pain, fatigue, weakness, lack of endurance or incoordination. He had hypoactivity in his triceps. He had a normal sensation and motor strength examination. He did not have muscle atrophy. On the examination, the Veteran had very slight weakness in the left upper extremity and some sensory impairment. The examiner noted that the Veteran had some limitations performing activities and occupations that required frequent turning of neck or holding the neck in prolonged extended or flexed positions. He also had limitation in heavy lifting and very heavy pushing/pulling. In December 2010, the Veteran was afforded a VA examination. The Veteran reported that he had trouble with his lateral ROM in his neck. He indicated that he had trouble driving because he had difficulty turning his head. The Veteran's neck pain was typically worse with cold weather. He reported his flare-ups as severe pain. His flare-ups frequented once to twice a week and lasted 6 to 12 hours. His pain was worse with increased movements especially quick turns of the head. His flare-ups were resolved with rest. The Veteran did not have a symptom of fatigue or weakness. However, he did have symptoms of decreased motion, stiffness, and pain. The Veteran had sharp posterior neck pain that was moderate and lasted 6 to 12 hours. His pain occurred once or twice a week. At rest the Veteran was able to hold his head at 5 to 10 degrees of flexion. His ROM was 20 degrees with pain for flexion, 25 degrees with pain for extension, 10 degrees with pain for left lateral flexion, 15 degrees with pain for right lateral flexion, 20 degrees for right lateral rotation, and 15 degrees with pain for left lateral rotation. He did not have additional limitations or ROM after repetitive use. He had some hypoactivity during his reflex examination. He had a normal sensory and motor examination. He had a negative Lasègue's test. In June 2014, the Veteran was afforded a VA examination. The Veteran was diagnosed with a cervical strain. He reported that he had continuous left neck pain. He described his pain as dull to sharp. He indicated that his pain radiated to his left shoulder and hand. He did not report any flare-ups that impacted the function of his neck. His ROM was 40 degrees with pain for flexion, 40 degrees with pain for extension, 40 degrees with pain for right/left lateral flexion, and 70 degrees with pain for right/left rotation. There was no functional loss or additional limitation of ROM following repetitive-use testing. He had less movement than normal and pain on movement that caused a functional loss/impairment after repetitive use. He had localized tenderness or pain to palpation for joints/soft tissue of the neck. He did not have pain on palpation that effected the muscle spasm on gait. The Veteran had a normal muscle strength testing, sensory testing, and reflex examination. He did not have muscle atrophy. He did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis. He did not have IVDS. He did not use an assistive device for his condition. The examiner opined that the Veteran's neck condition impacted his ability to work. He noted that the Veteran was limited with overhead lifting. The examiner remarked that there was no additional limitation due to pain, weakness, fatigability, or incoordination. A May 2015 VA treatment note documented that his neck extension was adequate but limited. A June 2018 VA treatment note documented that his neck condition was within normal limits. His muscle strength was 5/5. A July 2018 VA treatment note documented that he had full ROM in his neck. In July 2019, the Veteran was afforded a VA examination. The Veteran was diagnosed with cervical degenerative arthritis with radiculopathy. The Veteran reported that he continued to have pain. He described his pain as sharp that radiated down his left arm. He described his functional loss/impairment as difficulty with prolonged head movements. His ROM was 40 degrees for flexion, 40 degrees for extension, 40 degrees for right/left lateral flexion, 70 degrees for right lateral rotation, and 50 degrees for left lateral rotation. Pain was noted on the examination that caused a functional loss. There was no objective evidence of localized tenderness or pain to palpation for joints/soft tissue of the neck. There was evidence of pain with weight bearing. There was no additional loss of function or ROM after repetitive-use testing. Pain significantly limited functional ability with repeated use over a period of time and flare-ups. Described in the terms of ROM was 35 degrees for flexion, 35 degrees for extension, 35 degrees for right/left lateral flexion, 60 degrees for right lateral rotation, and 40 degrees for left lateral rotation. There was no localized tenderness, guarding, or muscle spasm of the neck. He had a normal muscle strength testing, reflex examination, and sensory examination. He did not have ankylosis or IVDS. He did not use an assistive device for his condition. The examiner remarked that he had a functional impact that made it difficult for him to turn his head and lift more than 30 pounds in an occupational setting. The examiner concluded that there was no functional limitation in a sedentary employment. The Board finds that a higher 30 percent evaluation for the Veteran's cervical spine disability is not warranted. For the entirety of the appeal period, the Veteran's forward flexion was limited to, at worst, 20 degrees. While the record demonstrated that he had ongoing pain, there was no probative evidence to support a finding that his range of motion was limited beyond the objective findings at the VA examinations. Further, the Veteran has not alleged, nor has the medical evidence of record demonstrated, ankylosis. Therefore, a rating in excess of 20 percent is not warranted for the Veteran's cervical spine disability based on the requirements under the General Rating Formula. The Board has also contemplated whether the Formula for Rating IVDS Based on Incapacitating Episodes applies here to warrant a higher rating and finds that it does not. The October 2006 VA examination noted that he did not have any incapacitating episodes requiring bedrest. Thus, Code 5243 will not warrant a disability rating in excess of 20 percent. Although the Veteran may voluntarily restrict physical activities when experiencing increased pain, that is not how VA defines an incapacitating episode. As such, an increased rating is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not reflect that such impairment would be akin to forward flexion of 15 degrees or less or manifest in ankylosis. The 2019 VA examiner considered functional loss and impairment during flare-ups and periods of repeated use but estimated that flexion would remain at 35 degrees. The Board has considered the Veteran's lay statements in reaching this decision. While the Veteran is competent to testify as to the symptoms he personally experiences and the Board finds his statements to be credible, the objective findings of the VA examiners are more probative as to the application of the rating criteria. Accordingly, a higher rating is not warranted. The Board also considered whether a separate evaluation is warranted for any objective neurological abnormality associated with the Veteran's cervical spine disability under an appropriate Diagnostic Code. The Veteran has already been awarded a separate disability rating for cervical radiculopathy of the left upper extremity under Diagnostic Code 8510. See January 2008 rating decision. REASONS FOR REMAND In August 2020, the Veteran was afforded a VA knee examination. However, the VA examination did not test the range of motion in active motion, passive motion, weight-bearing, and non-weight bearing motions, for the Veteran's left knee disability. See Correia v. McDonald, 28 Vet. App. 158. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand is required for another VA examination to determine the current nature and severity of the Veteran's service-connected left knee disability. Further, a January 2016 VA treatment note documented that he had knee pain that was likely secondary to a meniscus tear. The Board notes that all VA examinations indicates that the Veteran does not have a meniscus condition. Therefore, while on remand the VA examiner is asked to address whether the Veteran has a meniscus condition. The Veteran's TDIU claim is inextricably intertwined with the increased rating claim remanded herein, adjudication must be deferred pending completion of the requested development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA joints/knee examination. The claims folder must be reviewed in conjunction with the examination. Describe in full all current disabilities and functional impairments of the left knee, to include with repetitive motion, use over time, flare-ups, instability, and any meniscus complications. Additionally, based on review of the claims file, the examiner must, if possible, describe the Veteran's functional loss/impairment of his left knee since 2004, considering repetitive motion, use over time, flare-ups, instability, and any meniscus complications. If this is not possible without speculation, such must be clearly stated. 3. Then, readjudicate the claims on appeal. If any benefits sought remain denied, issue a supplemental statement of the case and, after appropriate time for response, return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.