Citation Nr: 21068812 Decision Date: 11/13/21 Archive Date: 11/13/21 DOCKET NO. 17-54 273 DATE: November 13, 2021 ORDER For the period on appeal prior to August 17, 2021, entitlement to a disability rating of 30 percent, but not higher, for the service-connected cervical spine (neck) disability, is granted. Since August 17, 2021, entitlement to a disability rating higher than 30 percent for the service-connected neck disability, is denied. FINDINGS OF FACT 1. For the period on appeal prior to August 17, 2021, the service-connected neck disability was manifested by painful motion with range of motion approximating favorable ankylosis, but was not manifested by unfavorable ankylosis. 2. Since August 17, 2021, the service-connected neck disability is/was manifested by painful motion with range of motion approximating favorable ankylosis, but was not manifested by unfavorable ankylosis. CONCLUSIONS OF LAW 1. For the period on appeal prior to August 17, 2021, the criteria for a disability rating of 30 percent for the service-connected neck disability were met; the criteria for a disability rating higher than 30 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. Since August 17, 2021, the criteria for a disability rating higher than 30 percent for the service-connected neck disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from July 1962 to July 1990. He received multiple awards and commendation including the Bronze Star Medal. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2021 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originates from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim(s) on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, it appears that the Veteran is employed, and he has not asserted otherwise. See Faust v. West, 13 Vet. App. 342 (2000) (where a claimant is actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, actual employability). In a December 2019 decision, the Board granted service connection for a bilateral knee disability, granted an increased rating of 40 percent for the service-connected thoracolumbar spine disability, and denied a rating higher than 20 percent for the service-connected cervical spine disability. The Veteran appealed that decision to the Veterans Court. In a January 2021 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision in part, and remanded the issue of entitlement to a disability rating higher than 20 percent for the service-connected cervical spine disability to the Board for additional development consistent with the Joint Motion. The Board's decision regarding the other matters was not disturbed. In May 2021, the Board remanded this claim for evidentiary development consistent with the January 2021 Order of the Veterans Court. The claim has since been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Disability Ratings Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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, supra; 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). During the course of this appeal, the criteria for Diagnostic Code 5201 rating arm disabilities, changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board must consider the application of prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability, currently assigned a rating of 20 percent prior to August 17, 2021, and a rating of 30 percent since that date. In a December 1990 rating decision, VA granted service connection for a cervical spine disability and assigned an initial disability rating of 10 percent under Diagnostic Code 5293, effective August 1, 1990. In a January 1993 rating decision, the disability rating was increased to 20 percent, effective December 5, 1992. The current appeal arises from an increased rating claim received at VA on March 29, 2016. Subsequent to the Board's remand, in an August 2021 rating decision, the agency of original jurisdiction increased the disability rating to 30 percent, effective August 17, 2021, the date of a VA examination. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine. A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A rating of 20 percent requires 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. 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. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). 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. 38 C.F.R. § 4.71a, General Formula, Note (5). The report of a May 2016 VA Neck Examination reveals a diagnosis of degenerative arthritis. Symptom flares occur daily and last hours. Forward flexion was from 0 to 35 degrees; extension was from 0 to 20 degrees; right lateral flexion was from 0 to 25 degrees; left lateral flexion was from 0 to 25 degrees; right lateral rotation was from 0 to 25 degrees; and left lateral rotation was from 0 to 20 degrees. There was no additional loss of function or range of motion after three repetitions. The Veteran's range of motion did not contribute to functional loss. Pain was noted on examination in all excursions except rotation. Pain was not present with weight-bearing motion. There was pain on palpation. The examiner found that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time; but the examiner was unable to say without resort to speculation whether pain, weakness, fatigue, or incoordination significantly limit functional ability with repeated use over a period of time or during flares. The rationale was that the Veteran was not having a flare, and the examiner would have to be present during a flare to objectively measure additional loss of range of motion during a flare. Guarding and spasms, though present, did not result in abnormal gait or abnormal spinal contour. However localized tenderness did result in abnormal gait or abnormal spinal contour. Muscle strength in the upper extremities was full, without atrophy. Reflexes were normal; sensation was normal; there was no radicular pain. There was no intervertebral disc syndrome or other neurological abnormalities. The impact on the Veteran's ability to work was due to pain while working on a computer after 30 minutes. He often has to change positions. He has limited range of motion causing him to move his whole body when looking to the periphery. A May 17, 2019, clinical note reveals that neck range of motion was within normal limits. A VA neck examination in August 2021 reveals the Veteran's complaint of pain and stiffness that runs down to the shoulders. The condition interferes with sleep, bending his neck, and looking from side to side. On examination, forward flexion was to 10 degrees, extension to 10 degrees lateral flexion was to 10 degrees bilaterally, and rotation was to 20 degrees bilaterally. Passive range of motion was not performed because it was medically contraindicated due to pain. Pain was noted with weightbearing and non-weightbearing. There was no additional loss of motion after three repetitions. With repeated use over a period of time and with flares, pain, fatigue, weakness, and lack of endurance reduce range of motion in all planes to 2 degrees. Tenderness and guarding result in decreased spinal contour due to degenerative arthritis. "Severe" flares occur daily and last several hours. Other than the already service-connected upper extremity radiculopathy, there were no associated neurological abnormalities. The examiner diagnosed cervical strain, degenerative arthritis, and intervertebral disc syndrome. The disability impacts work in that he will have pain with working at desk and problems with lifting and looking up and from side. After a review of all of the evidence, the Board finds that the criteria for entitlement to a disability rating of 30 percent are met for the appeal period prior to August 17, 2021; however, the criteria for any higher rating are not met for any period on appeal. The range of motion measurements prior to the August 2021 examination do not meet the criteria for a rating above 20 percent. However, the Veterans Court has found the previous evidence, including the May 2016 examination, to be inadequate. As the only adequate evidence regarding range of motion comes from the August 2021 examination, the Board will apply those findings to the entire appeal period, commencing with the March 2016 increased rating claim. As there is no indication or assertion that the current symptomatology and functional impairment began during the one-year period prior to the claim, the Board finds that an earlier effective date (prior to the date of claim) is not warranted. For the entire appeal period, the evidence does not substantiate unfavorable ankylosis. There is no finding of unfavorable ankylosis, nor are any of the characteristics of unfavorable ankylosis shown. The Veteran has always been able to attain the neutral position, i.e., 0 degrees. In sum, the Board concludes that, prior to August 17, 2021, a rating of 30 percent is warranted; however, for the entire period, a rating higher than 30 percent is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim to the extent of a rating higher than 30 percent, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.