Citation Nr: 21069844 Decision Date: 11/20/21 Archive Date: 11/20/21 DOCKET NO. 19-30 900 DATE: November 20, 2021 ORDER From July 1, 2017, an increased rating of 30 percent, but no higher, for service-connected cervical strain with degenerative disc disease is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to March 3, 2016 and in excess of 20 percent thereafter, excluding a period of temporary total evaluation, is remanded. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome, left sciatic nerve is remanded. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome, right sciatic nerve is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a permanent and total rating is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDING OF FACT From July 1, 2017, the evidence is at least evenly balanced as to whether the symptoms of the Veteran's cervical strain with degenerative disc disease has more nearly approximated forward flexion to 15 degrees or less; there was no unfavorable ankylosis of the cervical spine or incapacitating episodes as defined in the applicable regulation. CONCLUSION OF LAW From July 1, 2017, the criteria for a rating of 30 percent, but no higher, for cervical strain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to March 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2011 and June 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2011 rating decision, the RO denied a rating in excess of 10 percent for the Veteran's degenerative joint disease of the lumbar spine and granted service connection for intervertebral disc syndrome, left sciatic nerve and intervertebral disc syndrome, right sciatic nerve. In May 2012, the Veteran filed a timely notice of disagreement with the evaluations assigned. In April 2014, the RO issued a statement of the case on these three issues. In May 2014, the Veteran filed a statement stating he was applying for a TDIU due to his back condition, and that he is still having constant problems with his back. He requested TDIU be considered at the same time as the appeal. As this statement was filed within 60 days of the statement of the case, the Board finds that the statement is considered a timely substantive appeal. Though the RO did not certify these issues for appeal, the Veteran has perfected an appeal of these issues and they are before the Board at this time. The Veteran was subsequently granted an increased 20 percent rating for his lumbar spine disability, effective March 3, 2016, in a June 2016 rating decision. The Veteran's request for advancement on the docket due to severe illness has been granted. 38 C.F.R. § 20.902(c). In February 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155. Ratings of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which rating to apply, the higher rating is assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cervical strain with degenerative disc disease From July 1, 2017, the Veteran's cervical strain with degenerative disc disease is rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 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. A 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 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. 38 C.F.R. § 4.71a, 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, this diagnostic code was not substantively changed. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 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). Private treatment records from January 2017 note that the Veteran underwent cervical fusion surgery. A February 2017 examination report for aid and attendance notes that the Veteran was unable to feed himself because he lacked range of motion of the neck and stability of standing. His neck was restricted by his cervical collar for the past three months. The Veteran underwent a VA examination in May 2017. The Veteran denied radiating pain, numbness, or other radiculopathy symptoms. Current distal neurologic examination was normal. The Veteran reported flare-ups, stating that he frequently woke up with more severe burning neck pain and stiffness. The Veteran also had an inability to drive in reverse or in heavy traffic. Range of motion testing showed forward flexion to 25 degrees, extension to 20 degrees, right and left lateral flexion both to 15 degrees, and right and left lateral rotation both to 40 degrees. Range of motion contributed to a functional loss in that he had difficulty driving and difficulty with multitasking or communicating in large groups due to limited neck range of motion. There was no evidence of localized tenderness or pain on palpation and no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over time and with flare-ups. There was no increased range of motion loss, but extended use such as looking up or down or driving in traffic would lead to pain which limited his ability to continue. The examiner also stated that the Veteran was not being examined during a flare-up and was not able to replicate associated range of motion loss. There was no guarding or muscle spasm and no additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory examinations were normal and there was no radiculopathy. There was no ankylosis of the spine. The Veteran did not have Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS) of the cervical spine. There was impact on his ability to work in that the Veteran experienced neck pain and stiffness which resulted in difficulty driving and difficulty with multitasking or communicating in large groups due to limited neck range of motion. A June 2018 private MRI showed no evidence of cervical spine cord compression or nerve root impingement at any level. The Veteran complained of chronic axial neck pain but no upper extremity radicular pain. A January 2019 MRI showed bilateral diffuse hypertrophy causing severe right and moderate left neural foraminal narrowing at C5-6. Subsequent VA treatment records note the Veteran's complaints of chronic neck pain. He was also noted to have limited range of motion. In his October 2019 VA Form 9, the Veteran stated he had three or more incapacitating exacerbations more than three times a year and that his range of motion was less than 15 degrees. At his February 2021 hearing before the Board, the Veteran stated that he could bend forward with his neck, but he could not go to the left and right without difficulty. He could no longer drive because he could not turn his head to the left or right. He needed to turn his whole shoulder to turn to the left or right. He also stated that he had pain all the time. The Veteran also had problems getting out of bed, and would sleep in a recliner. Private treatment records from October 2021 indicate that a cervical spine MRI showed moderate motion, no abnormal cervical cord signal or significant central stenosis, and foraminal narrowing. Following lumbar spine surgery in October 2021, a physical examination of the neck indicated normal range of motion, neck supple, no JVD present, and no tracheal deviation or thyromegaly present. As indicated, in the May 2017 VA examination, the Veteran's forward flexion of the cervical spine was limited to 25 degrees with pain. However, the Veteran has consistently reported neck pain, increased pain with use, and flare-ups. While the May 2017 VA examiner did not determine additional range of motion losses following repetitive use and flare-ups, the examiner indicated that pain significantly limited functional ability with repeated use over time and with flare-ups and that extended use of the neck, such as looking up or down or driving in traffic would lead to pain which limited his ability to continue. Additionally, the Veteran has provided statements that he cannot move his head to the left and right. These problems made him unable to drive and take care of personal hygiene. The Veteran is competent to report observable symptoms and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, given that the Veteran experienced pain, flare-ups, limited range of motion loss, and the VA examiner indicated that pain significantly limited functional ability with repeated use over time and with flare-ups, and that extended use of the neck would lead to pain and an inability to use the neck; the evidence is at least evenly balanced as to whether the symptoms of the cervical spine disability more nearly approximate forward flexion less than 15 degrees as required for a 30 percent rating under the General Rating Formula throughout the appeal period. As 30 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether the Veteran is entitled to a higher rating due to functional loss under §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A rating in excess of 30 percent is not warranted. A schedular rating in excess of 30 percent requires ankylosis or incapacitating episodes, which have not been shown. There is no evidence of any ankylosis. There is also no evidence that the Veteran has IVDS of the cervical spine and that a physician required bed rest for a duration of six weeks during the past 12 months, as required under the Formula for Rating IVDS. Thus, an increased rating in excess of 30 percent is not warranted. The Board has also considered whether any separate ratings are warranted for neurological impairment; however, the weight of the evidence, including the May 2017 VA examination report and the June 2018 private MRI report, is against a finding that the Veteran has neurological impairment from the cervical spine disability, to include neurological impairment in the upper extremities, or bowel or bladder impairment. For the foregoing reasons and resolving reasonable doubt in favor of the Veteran, from July 1, 2017, a rating of 30 percent, but no higher, is warranted for the Veteran's cervical strain with degenerative disc disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Increased ratings for degenerative joint disease of the lumbar spine, intervertebral disc syndrome, left sciatic nerve, and intervertebral disc syndrome, right sciatic nerve The Veteran is seeking increased ratings for his service-connected degenerative joint disease of the lumbar spine, intervertebral disc syndrome, left sciatic nerve, and intervertebral disc syndrome, right sciatic nerve. The record reflects that the Veteran was last examined by VA in June 2016, where he reported that he was limited when in pain. Since the last examination, the Veteran stated at his February 2021 hearing that his lower back had been giving him problems and his doctors recommended surgery. He stated he could not bend and would walk limped over due to pain. October 2021 private treatment records indicate that the Veteran underwent lumbar fusion surgery. As the evidence shows that the Veteran has had a worsening of symptoms, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his degenerative joint disease of the lumbar spine and associated intervertebral disc syndrome, left and right sciatic nerves. The Veteran may not be able to attend an examination given his physical condition from a recent stroke. If an examination cannot be scheduled, an opinion must nonetheless be obtained based on a complete review of the record. Entitlement to TDIU As stated above, the issue of TDIU has been raised by the record during the pendency of the appeal. However, it is unclear when the Veteran stopped working as a result of his service-connected disabilities. In a May 2014 VA Form 21-8940, the Veteran stated that he last worked full-time in 2008. In his October 2019 VA Form 9, the Veteran stated he was unemployable before 2014. At his February 2021 hearing, he stated that he last worked six or seven years ago. In order to accurately assess the Veteran's claim for a TDIU, the Board finds that the Veteran's dates of employment should be clarified on remand. Entitlement to a permanent and total rating and entitlement to SMC The issue of entitlement to SMC based on the need for aid and attendance is raised by the record on appeal. Specifically, at the February 2021 hearing, the Veteran alleged that as a result of his back and neck he needs help with his hygiene and daily living. This issue is inextricably intertwined with the issues being remanded. Similarly, the issue of entitlement to a permanent and total rating is inextricably intertwined with the issues being remanded. Therefore, consideration of whether the Veteran is entitled to a permanent and total rating or SMC must be deferred pending resolution of the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to request that an updated VA Form 21-8940 be provided detailing the Veteran's full employment history. 2. Obtain the Veteran's VA treatment records for the period from September 2019 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease of the lumbar spine, intervertebral disc syndrome, left sciatic nerve, and intervertebral disc syndrome, right sciatic nerve. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should also note whether there is the presence of ankylosis. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). **If the Veteran is unable to attend a VA examination due to his health, please obtain a medical opinion from an orthopedic specialist to determine the severity of the degenerative joint disease of the lumbar spine, intervertebral disc syndrome, left sciatic nerve, and intervertebral disc syndrome, right sciatic nerve based on a complete review of the record. The report should include all subjective complaints and objective signs. In addition to objective test results, the clinician should fully describe the functional limitations caused by the Veteran's disabilities, including the effect on his occupational and daily functioning. A full rationale for all opinions expressed should be provided.** For any question that cannot be answered without physical examination of the Veteran, this should be explained, with an explanation as to why this is the case. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.