Citation Nr: 21067485 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-28 620 DATE: November 4, 2021 ORDER A rating in excess of 20 percent prior to April 19, 2017, for a neck disability is denied. FINDING OF FACT The Veteran's neck disability did not result in ankylosis, or intervertebral disc syndrome (IVDS), or a forward flexion functionally limited to 15 degrees or less prior to April 19, 2017 despite pain, weakness, fatigability, or incoordination during repeated use and flare-ups. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a neck disability prior to April 19, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Navy from August 1981 to October 1998. The Veteran filed a claim for a rating in excess of 10 percent for his neck disability which was received by the VA in April 2010. A May 2011 rating decision increased the rating to 20 percent. The Veteran is asking for a higher rating. In August 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. In October 2017, the Board issued a decision that, in relevant part, denied increased disability rating in excess of 20 percent for neck prior to April 8, 2016. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court vacated the portion of the October 2017 Board decision denying a rating in excess of 20 percent for the Veteran's neck disability prior to April 8, 2016, and remanded the case for further consideration consistent with a Joint Motion for Partial Remand (JMR). According to the JMR, Board erred when it relied on the October 2010 and April 2016 VA examination reports that the JMR found inadequate because they did not adequately account for additional functional impairment caused by flare-ups or due to pain. In May 2020, the Board remanded the issue for additional development to obtain a retrospective medical opinion to assess the functional loss during the Veteran's flare-ups, repetitive use and due to pain prior to April 19, 2017. Of note, the October 2017 Board decisions remanded the issue of a rating in excess of 20 percent for the Veteran's neck disability from April 8, 2016. Subsequently, the Agency of Original Jurisdiction (AOJ) denied rating in excess of 20 percent for neck from April 8, 2016 (see October 2018 SSOC), and granted a temporary total rating for neck from April 19, 2017 to July 1, 2017 due to a neck surgery (see March 2018 rating decision). The Board decision in May 2020 made a final decision on the neck ratings after July 1, 2017 (the expiration date of the temporary total rating) which was not challenged by the JMR. As such, the issue currently before the Board is a rating in excess of 20 percent for the neck prior to April 19, 2017 (the beginning date of the temporary total rating). A retrospective medical opinion was obtained in September 2020 pursuant to the May 2020 Board remand directives. However, this opinion did not answer the Board question properly. In December 2020, the Board again remanded the issue to obtain a retrospective medical opinion to assess the functional loss in terms of range of motion due to flare-ups or due to pain prior to April 19, 2017. The Board specifically ask the examiner to address the October 2010 and April 2016 VA examination reports. The second retrospective medical opinion was obtained in May 2021. Increased Rating The Veteran's neck disability (degenerative disc disease (DDD) at C4-C7) may be rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. As discussed below, the evidence does not show that the Veteran has IVDS in his cervical spine, as such, a rating based on IVDS does not apply here, and his neck disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that: A 20 percent evaluation is assigned when forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, when 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 evaluation is assigned when forward flexion of the cervical spine is 15 degrees or less or when there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned when there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. In July 2009, the Veteran was seen for joint and neck pain that was thought to be the result of a tick bite. It was noted that the Veteran reported experiencing neck spasms, but none were observed on examination. In April 2010, the Veteran filed a claim seeking an increased rating for his cervical spine disability. In October 2010, he was afforded a VA examination for his neck condition at which he demonstrated forward flexion to 35 degrees. The Veteran reported constant neck pain and severe neck pain during flare-ups. He stated that the flare-ups occurred weekly and lasted approximately 1-2 days. They were brought on by activity and alleviated by rest. The examiner noted pain for all motions (active and passive) and after repeated use but opined that pain did not result in additional limitation of the Veteran's range of cervical motion. The examiner indicated that there was no cervical spine ankylosis present. No estimate was made as to the impact of flare-ups on the Veteran's range of cervical motion. However, the examiner did find that repetitive motion testing did not further limit range of motion beyond the 35 degrees of forward flexion, even though pain was present from 20 to 35 degrees. In July 2010, the Veteran reported experiencing constant neck and back pain at a private treatment session. The doctor found that the Veteran had normal forward flexion in his cervical spine. At a VA treatment session in January 2015, the Veteran was noted to have limited flexion/extension in his neck that was painful at the end of range of motion. However, the specifics of the limitation of motion were not quantified. In April 2016, the Veteran was afforded another VA examination at which he demonstrated forward flexion to 25 degrees. Pain was noted and caused functional loss. The Veteran reported that he had problems with twisting and turning head repeatedly, and his pian was constant, and gradually worsening over years. The Veteran was able to perform repetitive use without additional loss of range of motion. The Veteran did not report flareups during examination, but reported that pain was constant. The examiner indicated that it would be speculative to report additional loss of range of motion (ROM) due to pain, weakness, fatigability, or incoordination during flareups or after repetitive use over a period of time. Muscle strength testing scored 5/5 and showed no muscle atrophy. The examiner found no ankylosis, IVDS, or other neurologic abnormalities related to the neck condition such as bowel or bladder problems due to cervical myelopathy. Other evidence does not show that the prior to April 19, 2017, the Veteran's neck disability manifested symptoms more severe than those reflected in the VA examinations. For example, VA treatment records in December 2014 showed neck ROM was good and records in January 2015 showed limited neck flexion and extension with pain at the end of ROM. VA treatment records in March 2017 showed that MRI of neck revealed C3-C7 stenosis, and the plan was to undergo laminoplasty. VA treatment records in April 2017 showed that the neck's flexion and extension was good, but the Veteran reported pain shooting down from his neck. At his Board hearing in August 2016, the Veteran reported that he experienced pain and limited range of motion of his neck. (Of note, the Veteran had already been service connected for radiculopathy of upper extremities associated with his neck condition and the JMR specifically indicated that there was no disagreement with the Board's previous decision on this matter. As such, it is no longer an issue on appeal.) As noted, the JMR observed that during the October 2010 VA examination, the Veteran had reported severe weekly flare-ups of neck pain lasting one to two days that required him to "stop and rest"; that the Board noted that Appellant had reported "painful flare ups" during the October 2010 examination, but did not address the reported severity and frequency of Appellant's flare-ups, or explain what consideration, if any, it gave to any functional limitation caused by the Veteran's reported flare-ups; and that the April 2016 VA examiner found that the Veteran experienced pain on examination and stated that Appellant's pain caused functional loss, but also stated that he could not opine, without resort to speculation, about the degree to which the Veteran's functional ability might be limited "during flare-ups, or when the joint/spine is used repeatedly over a period of time," reasoning that an opinion could not be provided because "the veteran is not having a flare up today." The JMR concluded that the Board had not addressed whether the examiner's inability to provide an opinion was supported by adequate rationale, and noted that the Court had explained that the Board should determine the amount of additional range of motion loss that a veteran experiences when pain causes functional loss after repeated use over time or during flare-up periods. Further, the Court has explained that "case law and VA guidelines anticipated that examiners would offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans" and that "direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. With the JMR's guidance in mind, the Board remanded the Veteran's claim to obtain a retrospective medical opinion that would attempt to quantify how much additional loss of motion the Veteran experienced in his cervical spine during a flare-up. In May 2021, a VA medical opinion was obtained to address the additional functional loss during flare-ups and due to pain, which was not adequately reflected by the October 2010 and April 2016 VA examination reports as indicated by the JMR. The VA examiner opined that (1) with regard to the October 2010 VA examination, no further loss of ROM due to flare ups would be appropriate. The examiner explained that flare ups were reported that were weekly and severe and the Veteran had to stop and rest during flares. However, this was also reported as daily symptoms and no additional limitations after three repetitions of ROM; (2) with regard to the April 2016 VA examination, no further loss of ROM would be appropriate, because the Veteran did not report flare ups and no actual statement recorded from the Veteran as to a decreased ROM after repetitive usage. The only thing recorded was that the pain was constant, therefore, the initial ROM reflected a decreased ROM with constant pain. The Board finds that the evidence of record does not support a rating in excess of 20 percent prior to April 19, 2017. A 30 percent rating or higher requires forward flexion of the cervical spine to be functionally limited to 15 degrees or less, or for the evidence to show ankylosis of the cervical spine. Here, despite the weakness, fatigability, or incoordination during repeated use over time and flare-ups, the Veteran's neck could flex forward to 25 degrees or more as shown by the October 2010 and April 2016 VA examinations. Treatment records suggested greater range of motion was possible. While case law suggests that pain can cause functional limitation, pain alone, unaccompanied by actual loss of motion, does not mandate a higher rating. This appears to be the case here. A VA examiner carefully reviewed the portion of the two VA examinations found to be inadequate, and provided a statement that was grounded in the evidence of record contained in those reports. This statement explained why it was felt that even if there were some flare-up of the Veteran's cervical spine disability, that such flare-up would not necessarily result in limitation of motion sufficient to justify a higher rating. It is noted that pain on cervical spine motion was seen at both the 2010 and 2016 VA examinations, but it is noted that even then pain was not shown to have onset at a level that would support a rating in excess of 20 percent. Additionally, there is no evidence of ankylosis shown. As such, the evidence does not support a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. In reaching this conclusion, the Board has considered whether a higher rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a compensable rating. The evidence of record does not show that pain, weakness or other symptoms has functionally limited the forward flexion in the Veteran's cervical spine to 15 degrees or less at any time during the course of the appeal and prior to April 19, 2017. For example, the Veteran demonstrated forward flexion in his cervical spine to 35 degrees during the October 2010 VA examination, and to 25 degrees during the April 2016 VA examination. In both examinations, painful motion was noted, and according to May 2021 VA opinion, these ranges of flexion reflected the decreased ROM with constant pain. As such, a higher rating based on additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Accordingly, a rating in excess of 20 percent prior to April 19, 2017 for a neck disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.