Citation Nr: 21067350 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-28 909A DATE: November 4, 2021 ORDER A higher 30 percent rating, though no greater, is granted from March 9, 2012 to September 6, 2017 for residuals of a cervical muscular strain. FINDING OF FACT From March 9, 2012 to September 6, 2017, the Veteran's cervical muscular strain, at worst, limited the flexion of his cervical spine to 15 degrees owing to the associated pain. CONCLUSION OF LAW For the period from March 9, 2012 to September 6, 2017, the criteria are met for a higher 30 percent rating, though no greater, for the residuals of the cervical spine muscular strain. 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 (DC) 5235. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to June 2005. This appeal to the Board of Veterans' Appeals (Board) originated from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board, in relevant part, denied a rating higher than 10 percent for this cervical spine disability prior to September 7, 2017. However, as of that date, the Board granted a higher 30 percent rating for this disability, though denied any greater rating. To the extent that it was unfavorable, the Veteran appealed the Board's decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In July 2021, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision to the extent unfavorable concerning this claim and remanding this claim back to the Board for re-adjudication in compliance with agreement in the JMPR. A higher 30 percent rating, though no greater, is granted for the cervical spine disability from March 9, 2012 to September 6, 2017 The Veteran contends that his cervical muscular strain was more severe than contemplated by his 10 percent rating for this remaining period at issue prior to September 7, 2017. As already mentioned, from September 7, 2017 onward, the Board already has granted a higher 30 percent rating for this disability. And the CAVC did not disturb or overturn that favorable finding when partially vacating the Board's October 2020 decision. The Veteran's cervical spine muscular strain is rated under 38 C.F.R. § 4.71a, DC 5235, of the General Rating Formula for Diseases and Injuries of the Spine. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5235 was not changed. According to this General Rating Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A higher 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. An even higher 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 still greater 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, meaning when additionally considering the adjacent thoracic and lumbar (thoracolumbar) segment. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id., at Note (1). Unfavorable ankylosis is defined as 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) is always considered favorable ankylosis. Id., at Note (5). 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. For the period at issue from March 9, 2012 to September 6, 2017, the Board finds that a higher 30 percent rating, though no greater, is warranted for the Veteran's cervical muscular strain. The Veteran was provided a VA examination in August 2012. He reported flare-ups if he sits for too long, as his neck muscles then feel stiff. Range of motion on forward flexion was to 45 degrees or greater, extension to 30 degrees, right and left lateral flexion (side bending) to 20 degrees to each side, right lateral rotation (twisting) to 60 degrees and left lateral rotation to 45 degrees. Pain began at the end of each range of motion (so at the terminal points). After repetitive movement, range of motion was forward flexion to 45 degrees or greater, extension to 40 degrees, right and left lateral flexion to 35degrees to each side, right lateral rotation to 60 degrees, and left lateral rotation to 45 degrees. Functional loss was due to less movement than usual and pain on movement. The examiner indicated the Veteran's pain limited his ability to turn his head. However, he did not have intervertebral disc syndrome (IVDS). A December 2012 private treatment record shows the Veteran had reduced range of motion in cervical spine flexion, extension, and rotation. This record does not give specific range-of-motion measurements, however, it suggests that he had more severe limitation of motion than was shown during his prior August 2012 VA examination. Moreover, additional private treatment records throughout this period on appeal continue to show that he had reduced range of motion of his cervical spine, albeit without any specific measurements being given in most of the records. Other noted symptoms included pain, tenderness, and swelling of his cervical spine. Additionally, these records reflect that he was receiving injections to help manage his cervical spine pain. A private treatment record from June 2014 indicates the Veteran's cervical spine flexion was limited to just 15 degrees, which warrants a higher 30 percent rating. A December 2015 private treatment record and subsequent private treatment records from the same provider show the Veteran's cervical spine motion continued to be limited on flexion, extension, and left and right lateral rotation. A March 2016 VA treatment record shows he reported neck pain as 10 out of 10, with a 10 being the most severe. Consideration also has been given to assigning a rating alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, but as was indicated during the August 2012 and September 2017 VA examinations, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, DC 5243. Thus, a rating under the Formula for Rating IVDS Based on Incapacitating Episodes would be inappropriate. Regarding neurological impairment, the Veteran already has been granted service connection and separate 20 percent ratings for associated radiculopathy of his upper extremities, and the lay and medical evidence of record is against finding that he has any other neurological abnormality associated with this spine disability. Additionally, service connection and separate ratings have been granted for sciatica and femoral radiculopathy of his lower extremities since associated with his thoracolumbar spine disability more specifically, degenerative joint disease of his lumbosacral spine with thoracic scoliosis. For these reasons and bases, the medical and lay evidence supports a higher 30 percent rating for the Veteran's cervical muscular strain even prior to September 7, 2017, i.e., effectively since March 9, 2012. However, the Board also finds that the preponderance of the evidence does not support any greater rating. When the preponderance of the evidence is against the claim (or this portion of it), the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.