Citation Nr: 21067386 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-48 039 DATE: November 4, 2021 ORDER A rating in excess of 20 percent for a lumbar strain prior to September 5, 2019, is denied. A rating in excess of 40 percent for a lumbar strain since September 5, 2019, is denied. A rating in excess of 10 percent for a cervical strain prior to November 13, 2017, is denied. A rating in excess of 20 percent for a cervical strain prior to September 5, 2019, is denied. A rating in excess of 30 percent for a cervical strain since September 5, 2019, is denied. FINDINGS OF FACT 1. The Veteran had active duty from August 1991 to July 1995 with additional service in the National Guard; he has been 100 percent disabled since September 2019. 2. Prior to September 5, 2019, the lumbar strain was characterized by subjective complaints of continuously worsening lumbar spine pain, and difficulty bending, walking extended distances, sleeping, staying seated in one position, turning or twisting without pain, and walking or sitting for extended periods of time; objective findings included forward flexion, at worst, measured from 0 degrees to 70 degrees and no ankylosis or intervertebral disc syndrome (IVDS). 3. Since September 5, 2019, the lumbar strain has been characterized by subjective complaints of low back pain, numbness, and difficulty bending, twisting, walking, sitting, standing, laying on his back, and engaging in intimate acts; objective findings have included no ankylosis and IVDS with no incapacitating episodes over the 12 months prior to diagnosis. 4. Prior to November 13, 2017, the cervical strain was characterized by, among other things, subjective complaints of headaches, neck pain and stiffness; objective findings included forward flexion measured, at worst, to 35 degrees, a combined range of motion measured, at worst, at 235 degrees, abnormal gait and reduced lordosis not caused by spasms, guarding not resulting in abnormal gait or spinal contour, and no IVDS. 5. Prior to September 5, 2019, the cervical strain was characterized by subjective complaints of headaches, neck pain, spasms, strains, numbness, and tingling, and difficulty driving; objective findings included forward flexion measured, at worst, to 30 degrees, and no ankylosis or IVDS. 6. Since September 5, 2019, the cervical strain has been characterized by subjective complaints of worsening neck pain, severe neck spasms, chronic neck stiffness, headaches, and difficulty eating and sleeping; objective findings include forward flexion measured, at worst, to 2 degrees, and no ankylosis or IVDS. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine strain prior to September 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5242-5243 (2020); DCs 5242-5243 (2021). 2. The criteria for a rating in excess of 40 percent for a lumbar spine strain since September 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.59, 4.71a, DCs 5242-5243 (2020); DCs 5242-5243 (2021). 3. The criteria for a rating in excess of 10 percent for a cervical spine strain prior to November 13, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.59, 4.71a, DCs 5242-5243 (2020); DCs 5242-5243 (2021). 4. The criteria for a rating in excess of 20 percent for a cervical spine strain prior to September 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.59, 4.71a, DCs 5242-5243 (2020); DCs 5242-5243 (2021). 5. The criteria for a rating in excess of 30 percent for a cervical spine strain since September 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.59, 4.71a, DCs 5242-5243 (2020); DCs 5242-5243 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an procedural matter, the Board remanded the claims on appeal in July 2019 for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time form exacerbations or illnesses proportionate to the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Notably, portions of the rating schedule addressing the musculoskeletal system were amended effective February 7, 2021; however, the diagnostic codes for spinal injuries - DCs 5242 and 5243 - were not changed. Accordingly, the pre-amended criteria and current rating criteria will be considered together for the Veteran's lumbar and cervical spine disabilities. Lumbar Strain The lumbar strain has been rated under DC 5242. The Board will consider all relevant diagnostic codes. Under the relevant regulations, higher ratings will be warranted when the objective medical evidence shows the following: Forward flexion of the lumbar spine at 30 degrees or less (40% under DC 5242); Favorable ankylosis of the entire lumbar spine (40% under DC 5242); IVDS with incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks over the past 12 months (40% under DC 5243); Unfavorable ankylosis of the entire thoracolumbar spine (50% under DC 5242); or IVDS with incapacitating episodes with a total duration of at least 6 weeks over the past 12 months (60% under DC 5243). Rating Period Prior to September 5, 2019 In March 2012, the Veteran reported injuring his tailbone in service and continuing to feel pain in the area. In July 2013, his wife affirmed that he had pain in his low back, noting that he had difficulty sitting in one position for more than 5 minutes and became depressed upon experiencing neck and back soreness. At an August 2013 VA examination, the Veteran complained of discomfort in and across his lower sacral area that occurred when sitting or walking for prolonged periods of time. Upon examination, the forward flexion of the lumbar spine ranged between 0 and 90 degrees without pain. The examiner diagnosed a lumbar strain, observing that the Veteran did not have IVDS and that the disorder did not impact his ability to work. In a subsequent August 2017 examination, the Veteran reported that the lumbar spine disorder had worsened, describing difficulty bending, walking extended distances, sleeping, staying seated in one position, and turning or twisting without pain. He further had radiating pain in his hips and legs, numbness in his legs, and limped when walking. Finally, he had flare-ups of the lumbar strain characterized by an inability to sit or stand for long periods of time, difficulty moving or turning, radiating pain, spasms, tension, and knots in his upper back and arms. Upon examination, forward flexion of the lumbar spine ranged from 0 to 70 degrees. The examiner found that he did not have ankylosis or IVDS, diagnosed a lumbosacral strain, degenerative arthritis, minimal spondylosis, and spina bifida, and observed that the lumbar spine disorder affected his ability to work as it resulted in difficulty with repetitive bending, twisting, and heavy lifting. In a September 2017 statement, the Veteran further elaborated on the then-current status of the lumbar spine disorder, noting that he had muscle spasms and pain in his lower back. However, the Veteran's statement reflected neither ankylosis nor IVDS of the lumbar spine. In subsequent medical treatment notes, the Veteran reported ongoing, worsening pain in the lumbar spine. However, while clinicians, to include in a July 2019 treatment note, found that he had decreased pain-free range of motion, they did not measure his range of motion or assess whether he had ankylosis or IVDS. Based on the above, a rating in excess of 20 percent is not warranted prior to September 5, 2019. In this regard, the Veteran reported experiencing continuously worsening lumbar spine pain that resulted in difficulty walking or sitting for extended periods of time, bending, walking extended distances, sleeping, staying seated in one position, and turning or twisting without pain. However, forward flexion of the lumbar spine was measured, at worst, from 0 to 70 degrees. Moreover, the medical evidence fails to establish either ankylosis or IVDS. Therefore, the medical evidence does not support a higher rating prior to September 5, 2019, under both the pre-amended and current rating criteria. Rating Period Since September 5, 2019 In a September 2019 disability benefits questionnaire (DBQ), the Veteran noted low back pain and reported experiencing flare-ups of the lumbar spine disorder characterized by difficulty bending or twisting. He further asserted that the lumbar strain affected his ability to walk, sit, or stand. Upon examination, the clinician diagnosed radiculopathy and lumbar paraspinal pain. The clinician noted that he did not have ankylosis. While he had IVDS, the clinician found that he had no incapacitating episodes over the 12 months prior to examination. In a November 2019 VA examination, the Veteran described a pinching sensation and numbness in his right leg and intermittent radiation to his left leg. He said that the lumbar strain prevented him from pulling out items at work and that he occasionally required his wife's assistance in getting dressed. He asserted that the lumbar disorder prevented him from laying on his back, engaging in intimate acts, or sitting or standing for extended periods of time. He finally reported leaving work early multiple times per month due to flare-ups of back pain. Upon examination, the Veteran was diagnosed with a lumbosacral strain, degenerative arthritis, minimal spondylosis and spina bifida, and radiculopathy of the bilateral lower extremities. However, the examiner found that the Veteran had neither ankylosis nor IVDS. Based on the above, a rating in excess of 40 percent since September 5, 2019, is not warranted. To this end, the medical evidence establishes IVDS but fails to show that it resulted in any incapacitating episodes. Furthermore, the record does not demonstrate ankylosis. As such, the medical evidence does not support a rating in excess of 40 percent for a lumbar strain since September 5, 2019, under both the pre-amended and current rating criteria. Cervical Strain The Veteran's cervical strain has been rated under DC 5242. The Board will consider all relevant diagnostic codes. Under the relevant regulations, higher ratings will be warranted when the objective medical evidence shows the following: Forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees (20% under DC 5242); Combined range of motion measured at not greater than 170 degrees (20% under DC 5242); Muscle spasms or guarding significant enough to result in abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20% under DC 5242); IVDS with incapacitating episodes having a total duration of at least 2 weeks, but not greater than 4 weeks over the 12 months prior to examination (20% under DC 5243); Forward flexion of the cervical spine at 15 degrees or less (30% under DC 5242); Favorable ankylosis of the entire cervical spine (30% under DC 5242); IVDS with incapacitating episodes with a total duration of at least 4 weeks, but not greater than 6 weeks over the 12 months prior to examination (40% under DC 5243); or Unfavorable ankylosis of the entire cervical spine (50% under DC 5242). Rating Period Prior to November 13, 2017 In March 2012, the Veteran described injuring his cervical spine in service and reflected that he continued to have cervical pain. In a subsequent July 2013 statement, his wife explained that for the then-18 years that she knew him, the Veteran had headaches, neck pain, numbness of his upper extremities, pain in his mid-back and upper back, stiffness in his neck muscles, mood swings, and anxiety. She noted that his pain increased as he got older, that he had difficulty sitting in one position for more than 5 minutes and that he shifted around when seated to avoid pain. She further observed that he was unable to turn his head all the way from one side to the other. In an August 2013 examination, the Veteran noted that since his initial injury, he experienced headaches, frequent episodes of numbness in his hands, and pain in his mid-neck and sides that extended to both of his shoulders. Upon examination, the Veteran's range of motion was measured as forward flexion to 35 degrees, extension to 35 degrees, right lateral flexion to 20 degrees, left lateral flexion to 35 degrees, and right and left lateral rotation to 65 degrees each. The combined range of motion was 235 degrees and no additional loss of range of motion was found after repetitive use testing. The examiner diagnosed a cervical spine strain with radiculopathy and observed that he did not have guarding, muscle spasms, or IVDS. In a subsequent September 2013 imaging report, a clinician reported that the findings revealed a left lateral flexed position of the neck which "may reflect unilateral paraspinous muscular spasm." However, the clinician did not definitively diagnose a cervical spasm and, to the extent that a spasm was noted, did not offer that it resulted in abnormal gait or spinal contour. In an August 2014 statement, the Veteran further described the impact of his cervical spine disorder, asserting that his cervical spine disorder resulted in numbness, headaches, restricted neck and head movement, lack of sleep, restricted range of motion, and stress-related pain. In subsequent medical treatment notes between August 2014 and August 2017, clinicians found that the Veteran experienced chronic neck pain and limited cervical range of motion. Notably, an October 2015 clinician found that range of motion included extension to 15 degrees with pain and right and left lateral bending to 30 degrees bilaterally. However, while the clinician found that his forward flexion allowed him to touch within 10 centimeters of the floor, the clinician did not measure the range of forward flexion. The October 2015 clinician additionally found abnormal gait and reduced lordosis; however, the clinician observed that the reduced lordosis was not the product of muscle spasms and did not otherwise note guarding. Similarly, a June 2016 electrodiagnostic study revealed that the Veteran was guarding his neck and shoulder due to pain but did not offer that his guarding resulted in abnormal gait or spinal contour. In an August 2017 VA examination, the Veteran reported that the cervical condition had worsened, describing loss of strength in the arms, numbness in the arms and facial area, damaged nerve endings in both of the arms, constant headaches and migraines, difficulty sleeping, and reduced motion of the entire upper back. He said that he experienced flare-ups characterized by constant neck and shoulder pain, numbness in his neck, shoulder, and arms, reduced motion when turning his neck from side to side and up and down, constant muscle tension and radiating pain, abnormal gait, and scoliosis. Upon examination, range of motion was measured as forward flexion to 35 degrees, extension to 35 degrees, right and left lateral flexion to 40 degrees each and right and left lateral rotation to 70 degrees each. The combined range of motion was 290 degrees and no additional loss of range of motion was observed after repetitive use testing. The examiner found that the Veteran did not demonstrate guarding, muscle spasms, ankylosis, or IVDS. The examiner ultimately diagnosed a cervical strain and found that it resulted in difficulty with pulling, pushing, and lifting above his shoulders. Subsequently in a September 2017 statement, the Veteran reinforced that he had an abnormal gait. He said that his head was tilted to the left at all times as a result of his cervical spine injury and that an MRI indicated that a posterior midline lesion caused his muscles in the area and in his upper back to contract. He asserted that his abnormal gait was caused by these muscle contractions. He is competent to report symptoms, such as an abnormal gait or his head tilting to the left at all times, because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to determine the etiology of his abnormal gait due to the medical complexity of the matter. As such, his September 2017 statement is assigned lesser probative value. Based on the above, a rating in excess of 10 percent prior to November 13, 2017, is not warranted. In this regard, the Veteran described a cervical spine disorder characterized by pain, numbness, headaches, reduced motion in his neck, a lack of sleep, and an abnormal gait with his head tilted to the left at all times. Further, an October 2015 treatment record reported abnormal gait and reduced lordosis and a June 2016 electrodiagnostic study found that he was guarding his neck and shoulder due to pain. However, the October 2015 clinician found that his abnormal gait and reduced lordosis were not accompanied by spasms and the June 2016 electrodiagnostic study did not address whether his guarding resulted in abnormal gait or spinal contour. Furthermore, the medical treatment notes and examinations determined that he did not have IVDS and revealed that forward flexion was measured, at worst, between 0 and 35 degrees, and his combined range of motion was measured at worst, at 235 degrees. Accordingly, the medical evidence does not support a rating in excess of 10 percent prior to November 13, 2017, under both the pre-amended and the current rating criteria. Rating Period Prior to September 5, 2019 In a November 2017 VA examination, the Veteran reported that he had difficulty moving his neck, had pain on both sides of his neck, and got migraine headaches 2 to 3 times per week. He noted that his symptoms worsened when he attempted to move his head and said that his cervical strain resulted in difficulty moving his neck and trouble driving. Upon examination, forward flexion of the cervical spine was measured from 0 to 30 degrees with no additional loss of range of motion after repetitive use testing. The examiner found guarding and muscle spasms that did not result in an abnormal gait or spinal contour. The examiner further reported that the Veteran did not have ankylosis or IVDS. The examiner ultimately diagnosed a cervical strain and degenerative arthritis of the cervical spine, noting that the disorders resulted in difficulty moving the neck and driving. The examiner finally offered that his cervical disorder limited him to performing light physical and sedentary tasks. In subsequent July and September 2018 medical treatment notes, clinicians found that the Veteran had "very, very limited" range of motion of his neck, to include very limited extension and flexion with paresthesia of his bilateral upper extremities. However, the clinicians did not measure his range of motion or otherwise indicate that his forward flexion did not exceed 15 degrees. In a July 2018 statement, the Veteran noted that his cervical spine disorder resulted in muscular pain, spasms, strains, and numbness, as well as constant headaches and migraines. In a March 2019 examination, he reinforced experiencing ongoing pain, numbness, and tingling as a result of the disorder. Upon examination, his forward flexion was measured to 40 degrees. The examiner diagnosed degenerative arthritis of the cervical spine and radiculopathy of his bilateral upper extremities but found that he did not have ankylosis or IVDS. Based on the above, a rating in excess of 20 percent prior to September 5, 2019, is not warranted. In this regard, while clinicians found the range of motion of his cervical spine to be very limited, the forward flexion of his cervical spine was measured, at worst, to 30 degrees. The examinations and medical treatment notes further acknowledged that his cervical spine disorder resulted in headaches, neck pain, spasms, strains, numbness, and tingling, but found no ankylosis or IVDS. Accordingly, the medical evidence does not support an increased rating for a cervical strain prior to September 5, 2019, under both the pre-amended and the current rating criteria. Rating Period Since September 5, 2019 In a September 5, 2019 DBQ the Veteran reported difficulty moving his neck left or right. He said that his neck muscles hurt and required support when eating and that his cervical disorder resulted in headaches, migraines, and difficulty sleeping. The clinician diagnosed cervical degenerative disc disease, cervical radiculopathy, and cervical dystonia and found upon examination that the forward flexion of his cervical spine was measured, at worst, to 2 degrees. The DBQ further established that the Veteran's cervical spine disorder resulted in guarding, muscle spasms, and an abnormal spinal contour due to spasms and dystonia. The clinician observed that the lumbar spine disorder limited the range of motion of his neck, requiring him to turn his whole trunk to look in either direction. However, the clinician found that he did not have ankylosis or IVDS. In subsequent medical treatment notes, the Veteran asserted that his neck pain continued to worsen. Notably, October 2019 and September 2020 clinicians found that he continued to have severe spasms and distortion of the neck as well as chronic neck stiffness and headaches. However, the clinicians did not note, and the medical evidence did not otherwise establish that the Veteran demonstrated ankylosis or IVDS. Based on the above, a rating in excess of 30 percent since September 5, 2019, for a cervical strain is not warranted. To this end, the Veteran reported that his neck pain continued to worsen, with chronic stiffness, spasms, headaches, migraines, and difficulty sleeping. However, the medical examinations and treatment notes did not demonstrate that his cervical spine disorder resulted in ankylosis or IVDS. Accordingly, the medical evidence does not support a rating in excess of 30 percent for a cervical strain under both the pre-amended and the current rating criteria. The Board has considered the lay statements offered by the Veteran and his wife regarding the current severity of the lumbar and cervical spine disorders. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses; however, they are not competent to identify specific levels of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the lumbar and cervical spine disorders has been provided by the medical providers who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which his spinal disorders are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinion regarding the degrees of impairment caused by his spinal disorders and had sufficient facts and data on which to base their conclusions, the Board affords the medical opinions more probative value. As such, these records are more probative than the subjective complaints of increased symptomatology raised by the Veteran and his wife. Consideration has been given to assigning staged ratings for the Veteran's lumbar and cervical spine disorders. However, at no time during the period in question have the disabilities warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they have been specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.