Citation Nr: 21065691
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 16-46 628
DATE: October 27, 2021

ORDER

Entitlement to a total disability rating due to unemployability (TDIU) due to service-connected disability is granted.

Entitlement to an increased rating in excess of 10 percent for service-connected cervical spine (neck) disability with intervertebral syndrome (IVDS) is denied.

FINDINGS OF FACT

1. The Veteran's service-connected disabilities preclude him from securing or maintaining substantially gainful employment. 

2. The Veteran's service-connected neck disability has not manifested in forward flexion less than 30 degrees, a combined range of motion less than 170 degrees, ankylosis, or incapacitating episodes for VA purposes. 

CONCLUSIONS OF LAW

1. The criteria for a TDIU have been met. 38 U.S. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.18.

2. The criteria for entitlement to an increased rating in excess of 10 percent for service-connected neck 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 5242-5243.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1967 to December 1970 and from November 1973 to January 1977. 

These matters come before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO).

Under Rice, the Board has jurisdiction over the Veteran's TDIU claim and has separately captioned the issue on the first page of this decision.  Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation).

The most recent SOC was issued in August 2016. Since that time, relevant VA treatment records have been added to the claims file. In a June 2021 letter, the Board informed the Veteran that additional evidence had been added to the claims file since the August SOC and informed him that he had a right to have the Agency of Original Jurisdiction (AOJ) review the records prior to the Board and that he should mark the appropriate check-off box with the enclosed Additional Evidence Response form and return it to the Board. In July 2021, the Veteran returned the form and checked the box indicating he wished to waive his right to have his case remanded to the AOJ for review of the additional evidence that was submitted in his appeal. He acknowledged that the Board may, in considering any newly submitted evidence in the first instance, deny his appeal, and asked the Board to proceed with adjudication. Thus, the Veteran has waived AOJ review of the evidence received since the August 2016 SOC in the first instance, and the Board will proceed to adjudicate the matters. 

In the September 2016 VA Form 9, Appeal to Board of Veterans Appeals, the Veteran requested a Board hearing. The Board hearing was scheduled for May 2020 and then rescheduled for September 2020. In September 2020, the Veteran's representative informed the RO that the Veteran did not wish to appear for the hearing. He did not provide an explanation or request that the hearing be rescheduled. The hearing request is thus deemed withdrawn. 38 C.F.R. § 20.702 (e).

The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

1. Entitlement to a TDIU based on service-connected disabilities is granted. 

The Veteran contends that he is entitled to a TDIU because his service-connected disabilities preclude him from securing or maintaining substantially gainful employment. See October 2019 and April 2015 VA 21 8940. 

During the appeal period, the Veteran is in receipt of service connection for insomnia disorder with persistent depressive disorder (50 percent), right shoulder disability (20 percent), left shoulder disability (20 percent), right upper extremity radiculopathy (20 percent), lumbar spine disability (20 percent), neck disability (10 percent), tinnitus (10 percent), right lower extremity radiculopathy (10 percent), and bilateral hearing loss (noncompensable). 

The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in10 percent civil occupations. 38 U.S.C.§ 1155. "Generally, the degrees of disability specified [in the rating schedule] 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.

In determining whether the veteran is entitled to a TDIU, neither the veteran's non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, because of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; Hatlestad, 5 Vet. App. 524.

A Veteran may be awarded a TDIU upon a showing that she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

The Veteran has been in receipt of Social Security Administration disability benefits during the appeal period. The Social Security Administration noted that they considered the Veteran's impairments to be "severe" under the Social Security Act, and such disabilities included the Veteran's VA service-connected neck, left shoulder and back disabilities. While Social Security Administration decisions are not binding on the Board, such a finding regarding the impact of the Veteran's service-connected neck, left shoulder and back disabilities on his ability to work is probative evidence that weighs in favor of the TDIU claim. 

At a December 2014 VA neck examination, the Veteran stated that his pain was constant and that he had to use a transcutaneous electrical nerve stimulation (TENS) unit to obtain relief. He reported that he was unable to rotate or flex his neck repetitively without more having intense pain and that he cannot drive for more than an hour. The examiner found that the functional limitations of the Veteran's cervical spine disability were those that the Veteran reported. 

At the December 2014 VA shoulder and arm conditions examination, the Veteran reported that he continued to have limitations of range of motion and is unable to lift or carry anything weighing more than 15 pounds. The examiner found that the functional limitations of the Veteran's shoulder and arm disability were those that the Veteran reported. 

At a June 2018 VA examination, the Veteran reported having difficulty falling asleep and remaining asleep. The examiner found that the Veteran had symptoms of depressed mood, chronic sleep impairment and disturbances of motivation and mood. The examiner noted that the Veteran's affect was "worn out," and his insight and judgment were "fair." In his opinion provided for direct service connection, the examiner noted that the Veteran's depression has developed from his trouble sleeping.

At the August 2018 VA hearing loss and tinnitus VA examination, the examiner stated that the functional impact of the Veteran's bilateral hearing loss is that he has trouble hearing speech clearly and with localizing sound. 

At the June 2019 VA Mental disorders examination, the examiner continued diagnoses of insomnia disorder and persistent depressive disorder. The examiner cited relevant mental health history to include prescribed medications for sleep issues and noted difficulty falling and maintaining sleep, with periods of insomnia. The examiner found symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted that the Veteran's affect was "worn out" and his insight and judgment were fair. 

At the July 2019 VA back examination, the Veteran reported that he has severe back flare ups that occur "most of the time," and that they last weeks to months and are precipitated by activity. The examiner noted the Veteran's description of his functional loss due to his back symptoms as impairment due to pulling, reaching, bending and walking. 

At the July 2019 shoulder and arm conditions examination, the Veteran reported severe bilateral shoulder flare-ups that last days or months. Both shoulders flare-up when he reaches up or opens a jar. The Veteran reported further functional loss of pain in the shoulders when reaching, grabbing or picking up. The VA examiner found that an example of the functional impact of the Veteran's bilateral shoulder disabilities was pain with prolonged overhead reaching. 

The Veteran submitted a letter received in October 2019 from his former employer, R.A. O.D. who stated that the Veteran was unable to perform his duties as an optical technician because he must be able to use both hands and he is not able to use his right arm and hand without great pain and due to the medication, he takes for the conditions he cannot safely operate the machinery necessary to perform the job.  

The determination as to whether the requirements for entitlement are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. 

The Board finds that the preceding descriptions, both medical and lay, provided concerning the severity of the Veteran's service-connected disabilities warrants entitlement to TDIU. As noted, the Social Security Administration determined that he was unable to work, due in part to three of his VA service-connected disabilities. Additionally, the evidence reflects that the Veteran has additional pain when rotating or flexing his neck, and an inability to lift or carry anything weighing more than 15 pounds. A VA examiner noted that he has right and left shoulder pain when reaching, grabbing, or picking up. An examiner noted that his back symptoms cause difficulty with pulling, reaching, bending and walking. A VA examiner found that the Veteran had symptoms of depressed mood, chronic sleep impairment and disturbances of motivation and mood, that his affect was "worn out," and his insight and judgment were only "fair." The Veteran's former employer stated that the Veteran could not do his job as an optical technician due to his right upper extremity disabilities. The Board notes that in the Veteran's VA form 8940, he stated that he had a GED and two years of college education and that he had worked as an optical technician for over ten years until he was terminated from employment because he could not perform his duties due to his service-connected disabilities. Thus, the Board finds that the Veteran is unable to perform his past relevant work and as a former optical technician, and he seemingly does not have any transferable skills to perform other work within his physical and educational capacity. The Board finds that based on the above evidence, the Veteran is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Thus, entitlement to a TDIU is warranted, and is thus granted.

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 veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § § 4.3. 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.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.   

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § § 4.40.

In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

Entitlement to an increased rating in excess of 10 percent for service-connected neck disability

The Veteran seeks an increased rating for his service-connected neck disability, which is rated as 10 percent disabling under 38 C.F.R. § 4.71 diagnostic code 5242-5243. The Veteran's increased rating claim was received on September 12, 2014.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional diagnostic code, shown after the hyphen, represents the basis for the rating, while the primary diagnostic code indicates the underlying source of the disability. Here, the use of diagnostic code 5242-5243 reflects that the Veteran's cervical spine disability is described as both degenerative arthritis under diagnostic code 5242 and IVDS under diagnostic code 5243. 

During the pendency of the appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities. See 85 Fed. Reg. 76,453 (November 30, 2020). 

The evidence of record indicates that the Veteran has diagnoses of degenerative disc disease, degenerative joint disease and IVDS. Therefore, diagnostic code 5242 for degenerative arthritis and diagnostic code 5243 for IVDS are applicable in this case.

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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 and of the thoracolumbar spine is 240 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. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V).

The spine rating criteria affected by these revisions are diagnostic codes 5242 (pertaining to degenerative arthritis of the spine), and diagnostic code 5243 (pertaining to IVDS). The regulatory changes reworded the diagnostic code 5242 from "Degenerative arthritis of the spine (see also diagnostic code 5003)" to "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either 5003 or 5010)," however, there is no change in rating criteria under this diagnostic code. 38 C.F.R. § 4.71a, diagnostic code 5242 (2021).

As diagnostic code 5242 directs to consider diagnostic code 5003 for evaluating degenerative arthritis of the spine, the Board notes that the regulatory changes reworded the diagnostic code 5003 from "Arthritis, degenerative (hypertrophic or osteoarthritis)" to "Degenerative arthritis, other than post-traumatic", but did not change the actual criteria for rating disabilities under the diagnostic code. 38 C.F.R. § 4.71a, diagnostic code 5003 (2021). Under diagnostic code 5003 (under both old and new criteria) degenerative arthritis, when established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020, 2021). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id.  In the absence of limitation of motion, a 20 percent evaluation is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. A 10 percent evaluation is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Id.

As of February 7, 2021, diagnostic code 5242 also directs to consider diagnostic code 5010 for evaluating degenerative arthritis of the spine. In this regard, the Board notes that the diagnostic code 5010 was amended effective February 7, 2021. The regulatory changes reworded diagnostic code 5010 from "Arthritis, due to trauma, substantiated by X-ray findings" to "Post-traumatic arthritis". Prior to the regulatory change, diagnostic code 5010 directed that the disability (arthritis due to trauma) be rated as degenerative arthritis under diagnostic code 5003. 38 C.F.R. § 4.71a, diagnostic code 5010 (2020). As of February 7, 2021, under the amended criteria, diagnostic code 5010 directs that the disability (post-traumatic arthritis) be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a, diagnostic code 5010 (2021). If there are 2 or more joints affected, each rating is to be combined in accordance with 38 C.F.R. § 4.25. Id.  

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.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

As previously noted, diagnostic code 5243 for IVDS was amended effective February 7, 2021. Prior to February 7, 2021 diagnostic code 5243 directs to evaluate IVDS (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. 38 C.F.R. § 4.71a, diagnostic code 5243 (2020). As of February 7, 2021, under the amended criteria, diagnostic code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021). Otherwise, the actual criteria to evaluate IVDS under this diagnostic code was not changed. 38 C.F.R. § 4.71a, diagnostic code 5243 (2021). 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 

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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).

Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). 

Turning to the evidence of record from the beginning of the appeal period, the December 2014 VA examiner noted diagnoses of cervical degenerative arthritis of the spine, cervical degenerative joint disease joint disease, IVDS and right upper extremity radiculopathy. The initial range of motion measurement during the examination were forward flexion to 40 degrees, extension to 40 degrees, right and left lateral flexion each to 40 degrees, right and left lateral rotation each to 70 degrees. Pain was noted on the examination with range of motion for forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation.  The initial combined range of motion was 300 degrees. The combined range of motion after repetitive use was 300 degrees. 

The examiner found functional impairment of the cervical spine. The examiner found localized tenderness with palpation along the cervical spine. The Veteran did not have guarding or muscle spasm of the cervical spine. The muscle strength was normal and there was no muscle atrophy. The Veteran had moderate radiculopathy of the right upper extremity. The examiner noted a diagnosis of IVDS; however, the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. The Veteran reported that he is not able to rotate or flex his neck repetitively without more intense pain, and as a result he must limit the length of time that he drives a care to less than an hour. The Veteran did not report having flare-ups that impacted the function of his neck. Thus, the examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examiner noted that regarding repeated use over time, the examination neither supports nor contradicts the Veteran's statements describing functional loss with repetitive use over time. The Veteran did not have associated neurologic abnormalities or ankylosis. The examiner found that there were no additional factors contributing to the neck disability. The examiner noted that the functional impact of the cervical spine disability was as the Veteran reported above, affecting his ability to rotate or flex his neck repetitively without pain, and limiting the amount of time he could drive a car to less than one hour. 

In a January 2015 rating decision, the RO decreased the rating for the neck disability from 20 percent to 10 percent based on combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, localized tenderness not resulting in abnormal spinal contour. They noted painful motion upon examination. Although the cervical spine disability rating was a reduction from a 20 percent rating to a 10 percent rating, the RO had separated his cervical spine disability from his right shoulder disability which was to the Veteran's advantage overall, as he was provided a 10 percent rating for the neck and a separate 20 percent rating for the right shoulder.

VA treatment records support a finding that the Veteran's neck disability warrants a rating no higher than 10 percent. A May 2014 VA treatment record notes that he was provided with a soft collar. A June 2014 VA treatment record indicates the Veteran's complaints of neck pain and that he went to the Emergency Room in early May 2014 due to right upper extremity pain. He stated that he uses his TENS unit on his neck which helped quite a bit. Range of motion testing was grossly within normal limits without a change in pain or parasthesia in any direction. The clinician noted that his neck was strong and painless in all range of motion movement. He was given special tests, one a Spurling's compression test which was positive for local neck pain only. The clinician referred the Veteran to physical therapy for neck pain as well as radiculopathy. He noted that they tried a portable neck traction unit which gave him some benefit. A January 2015 record shows neck pain. A January 2016 VA treatment record notes that the Veteran stated that his neck is stable, about the same and that he continues to use TENS daily for his neck pain and it helps a great deal. An April 2016 VA treatment record notes neck limited rotation and extension, but no evidence of worsening. The Veteran submitted VA treatment record received in January 2017 showing a VA treatment record from April 2016 showing opiod therapy prescribed in part to his neck disability, to maintain daily functioning and improve sleep. An August 2016 VA treatment record states that the Veteran had full range of motion of his neck. In March 2018 he denied having neck symptoms. A May 2018 VA treatment record states that the Veteran reported neck pain that was not new and had remained the same. As noted, these records do not support a higher rating. 

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for service-connected neck disability with IVDS. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain, such that he experiences increased pain when he repeatedly flexes or rotates his neck or when he drives for more than an hour. However, the evidence of record, including VA treatment records and Veteran's statements do not show limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At the December 2014 VA examination, the Veteran denied having flare-ups, thus flare-ups need not be considered under Sharp. 

Rating his cervical spine disability with IVDS under the Formula for Rating IVDS Based on Incapacitating Episodes would not afford him a higher rating, as the evidence does not show that he was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. 

(Continued on the next page)

 

The Board finds that the claim of entitlement to an increased rating for service-connected neck disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Susan Leary

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.