Citation Nr: 21069603 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-45 507 DATE: November 19, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative changes of the cervical spine with cervical muscle strain is denied. REMANDED Entitlement to service connection for vertigo, to include as secondary to service-connected degenerative changes of the cervical spine with cervical muscle strain, is remanded. FINDING OF FACT During the appeal period, the Veteran's cervical spine disability did not manifest with forward flexion limited to 15 degrees or less, nor was there favorable ankylosis of the entire cervical spine noted by any VA examiner. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a cervical spine 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1973 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ), in this case a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were remanded to the AOJ in November 2019 for additional development. Following new VA examinations for both issues, the AOJ continued to deny an increased rating for the cervical spine and service connection for vertigo/dizziness in a June 2021 rating decision. This case has now been returned to the Board for further appellate action. The Veteran contends that his cervical spine disability is worse than contemplated by the currently assigned 20 percent rating. The Veteran's representative noted in April 2021 correspondence that the Veteran's cervical spine condition was degenerative in nature, and that it was hard to believe that there has been no change to the condition since 2009. It is the Veteran and his representative's contention that the most recent VA examination was inadequate, or that results were not properly recorded. The Veteran's cervical spine is currently rated as 20 percent disabling based on 38 C.F.R. § 4.71a, Diagnostic Code 5242, which is subsumed into the General Rating Formula for Diseases and Injuries of the Spine. A higher rating requires that the objective clinical findings show forward flexion of the cervical spine 15 degrees or less, or favorable or unfavorable ankylosis of the entire cervical spine. The evidence of record includes a history of the Veteran's treatment and complaints of cervical spine issues throughout the years. The Veteran initially filed a claim for upper back swelling in May 2009. In January 2010 there was an MRI of the cervical spine showing multilevel degenerative changes. The January 2012 VA examination report tested the Veteran's cervical spine range of motion (ROM); the clinical findings showed cervical spine forward flexion to 35 degrees, and a combined cervical spine ROM in all planes equaling 255 degrees. The June 2014 VA examination report's clinical findings showed cervical spine forward flexion to 45 degrees, and combined cervical spine ROM in all planes equaling 270 degrees. At the June 2015 VA examination, cervical spine forward flexion was measured at 30 degrees, with combined cervical spine ROM equaling 200 degrees. The November 2019 Board remand found the June 2015 VA examination inadequate for rating purposes because it failed to consider the effects of repeated use over time and flare-ups in light of the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), and thus ordered a new VA examination. The November 2020 VA examination report showed diagnoses of spinal stenosis, degenerative arthritis of the spine, and cervical radiculopathy of the cervical spine with muscle strain, but no ankylosis or intervertebral disc syndrome (IVDS). The Veteran was noted as using a cane constantly. The functional impact of the Veteran's back disability was an inability to drive. No flare-ups were reported by the Veteran. Recorded ROM testing showed cervical spine forward flexion to 20 degrees and combined cervical spine ROM to 135 degrees. While pain was noted with movement on this examination, there was no additional loss reported with repetitive use testing; again, there were no flare-ups reported. The Board finds that the November 2020 examination complies with the remand directives as well as the requirements of Sharp. The most recent examination found no evidence of ankylosis of the cervical spine. Additionally, while measuring ROM the examiner found no instance of the forward flexion being 15 degrees or less. This includes measurements taken following repetitive use. As discussed, no flare-ups were reported. The Board has no reason to doubt the authenticity of this examination, or the veracity of the measurements taken by the examiner. The Veteran's representative has provided no evidence to back up the claim of the results not being properly recorded. Despite the claim of the Veteran's representative, the ROM measurements have changed throughout the years, but still do not satisfy the criteria for a higher rating. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine also notes that any related neurologic impairment must be considered and assigned a separate rating if appropriate. 38 C.F.R. § 4.71a. Service connection is already in effect for radiculopathy of the right upper extremity (major) with a 20 percent rating assigned prior to November 30, 2020, and a 40 percent rating assigned effective November 30, 2020. Service connection is also already in effect for radiculopathy of the left upper extremity (minor) with a 30 percent rating assigned for the entire appeal period. Although these ratings are not separately on appeal, Note (1) requires that consideration be given to whether higher ratings are warranted. However, after thorough review of the record, the Board finds that higher ratings for right upper and left upper radiculopathy, related to the Veteran's cervical spine condition, are not warranted. Additionally, no other neurologic impairment related to the cervical spine condition is noted, so additional ratings for neurologic impairment other than upper extremity radiculopathy are not warranted. The Board acknowledges receipt of the May 2021 lay statement from the Veteran's relative, a nurse, alleging that the Veteran's cervical spine disability has gotten worse. While recognizing that this relative's extensive medical training qualifies them to address such medical matters more than a layperson, the lay statement does not provide any specific clinical findings, to include range of motion testing, which would permit the Board to award a higher rating based on the criteria set forth in the General Rating Formula. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for a cervical spine disability is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran contends that his vertigo is related to his service-connected cervical spine disability. The November 2019 Board remand ordered a VA examination be undertaken to determine the nature and etiology of the Veteran's vertigo. The November 2020 VA examiner noted that the Veteran began complaining of dizziness around 2012 and that it had been getting worse over time. The Veteran previously tried gabapentin to reduce his symptoms but with no relief. In providing a negative nexus opinion, the VA examiner noted that vertigo is caused by a problem in the inner ear, and that there is no medical literature showing that a neck condition can cause or aggravate vertigo. However, the Veteran's representative has provided examples from the National Institutes of Health and other sources showing a connection between cervical injuries and vertigo. Therefore, the Board finds that an addendum opinion is required to discuss this new evidence. The matter is REMANDED for the following actions: 1. Return the claims file to the November 2019 VA examiner (or another suitably qualified VA examiner) for an addendum opinion regarding the Veteran's claimed vertigo as secondary to the cervical spine disability. Based on a thorough review of the record, the examiner should provide an opinion as to whether it is as least as likely as not (50 percent or better probability) that the Veteran's vertigo was caused or aggravated by a service-connected disability, to include the cervical spine disability. The examiner should discuss the medical literature referenced by the Veteran's representative in the representative's April 2021 correspondence to the Board. A complete rationale for any opinion expressed should be included in the examination report. (Continued on the next page) 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for a response. Then, return the case to the Board. J. M. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.