Citation Nr: 21070000 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 09-03 117 DATE: November 22, 2021 ORDER Entitlement to an initial 30 percent, and no higher, rating for a cervical spine disability from May 1, 2016 is granted. FINDING OF FACT From May 1, 2016, the Veteran's cervical spine disability has been manifested by pain and limitation of motion that is functionally equivalent to favorable ankylosis; there has been no evidence of incapacitating episodes having a total duration of at least four weeks during a 12-month period; the only associated neurological abnormality is (separately rated) right and left upper extremity radiculopathy. CONCLUSION OF LAW An initial 30 percent, and no higher, rating for a cervical spine disability from May 1, 2016 is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243 (effective prior to and from February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1987 to January 1992 and from September 2002 to August 2003, with additional service in the Army National Guard. This case comes to the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) November 2007 rating decision, which granted service connection for degenerative disc disease (DDD) of the cervical spine, rated 10 percent, effective in December 2006. Since the initial award of service connection, the Veteran has undergone two cervical spine surgeries and was granted temporary total disability ratings based on convalescence, from October 29, 2009 to May 1, 2010 and from February 11, 2016 to May 1, 2016. Moreover, the Board previously remanded this case to the agency of original jurisdiction (AOJ) in November 2012, October 2016, January 2018, and April 2019. (In January 2018, the Board denied a higher rating for the cervical spine disability prior to May 1, 2016 but remanded the matter of a higher rating from May 1, 2016, which has continued on appeal.) A July 2020 decision review officer (DRO) decision granted a 20 percent rating for the disability from May 1, 2016. [The DRO decision re-characterized the disability as cervical spine strain, degenerative arthritis, and intervertebral disc syndrome (IVDS).] A November 2020 Board decision denied a rating in excess of 20 percent for the cervical spine disability from May 1, 2016. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A July 2021 CAVC Order granted a July 2021 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board's November 2020 decision and remanding the matter to the Board for action consistent with the terms of the JMR. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability from May 1, 2016 The Veteran contends that he is entitled to a higher rating because his cervical spine disability has caused impairment from May 1, 2016 that is more severe than is reflected by the current 20 percent rating. The Board agrees. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5243, for IVDS; however, he may also be evaluated under Code 5237, for cervical strain, and Code 5242, for degenerative arthritis. Disability under Codes 5237 and 5242 is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Disability under Code 5243 is rated under either the General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Code 5243 was amended, and it now provides that evaluation under the code is appropriate only when there is disc herniation with compression and/or irritation of the adjacent nerve root; all other disc diagnoses are evaluated under Code 5242. In this case, the Veteran's disc diagnoses may be evaluated under Code 5243 for his IVDS or under Code 5242 for his degenerative arthritis and DDD other than IVDS. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Code 5243 provides that, for purposes of ratings under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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. 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. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Applying the law to the evidence of record, the Board concludes that a 30 percent rating for the cervical spine disability based on limitation of motion is warranted. Under the General Formula, a 30 percent rating is warranted where forward flexion of the cervical spine is limited to 15 degrees or less or there is favorable ankylosis of the entire spine. The Veteran underwent VA examinations in January 2017, June 2018, and January 2020. In January 2017, the examiner was unable to test range of motion of the cervical spine "due to previous surgery, decreased [range of motion], and pain," yet indicated that there was no ankylosis. On range-of-motion testing in the subsequent examinations, forward flexion was shown to be, at worst, 25 degrees (in January 2020). Of note, the Board remanded the case in April 2019 for a retrospective opinion to clarify the functional status of the Veteran's impairment, especially in light of the January 2017 examiner's remarks. In response to whether the Veteran was still convalescing from his February 2016 cervical spine surgery at the time of the January 2017 examination, the January 2020 examiner stated that he still had residual symptoms from surgery and was still convalescing in the sense that his health was not completely restored. In response to whether the Veteran's impairment at the time of the January 2017 VA examination was the functional equivalent to ankylosis (and if so, whether it was most equivalent to favorable or unfavorable ankylosis), the examiner stated both the previous and current examinations showed the Veteran's cervical spine would have been functionally equivalent to favorable ankylosis after his C3-C6 fusion. This opinion constitutes sufficient evidence to assign a 30 percent rating based on ankylosis, where the evidence shows limitation of motion that is the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding that ankylosis of the spine can be demonstrated by its functional equivalent). The Board also finds that the preponderance of the evidence is against a rating in excess of 30 percent for a cervical spine disability under the General Formula. That is, there is no VA or private medical evidence to demonstrate that his cervical spine is unfavorably ankylosed or that his limitation of motion was the functional equivalent of unfavorable ankylosis. The January 2020 VA examiner assessed his limitation of motion, both at the time of the 2017 examination and the January 2020 examination, as the functional equivalent of favorable ankylosis and no more. The Board acknowledges the Veteran's lay reports of symptoms, including constant pain, inability to turn his head during flare-ups, shakes, headaches, and spasms, and that there was functional loss due to pain, fatigue, weakness, and lack of endurance during flare-ups. Nevertheless, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine for a 40 percent rating under Codes 5237, 5242, and 5243. To demonstrate unfavorable ankylosis (or the functional equivalent thereof), the Veteran would have to demonstrate both that his cervical spine is fixed in flexion or extension and that he manifests at least one of the additional symptoms set forth in Note 5 of the General Formula. None of these symptoms are evident from the Veteran's cervical spine disability, nor has the Veteran asserted that he has such symptoms that are akin to unfavorable ankylosis, even during a flare-up. The Board also finds that the preponderance of the evidence is against a rating in excess of 30 percent for a cervical spine disability based on incapacitating episodes. The evidence including VA and private treatment records does not show that since May 1, 2016, the Veteran was ever prescribed bed rest by a physician for at least four weeks over a 12-month period, in order to satisfy the criteria for a 40 percent rating under the Formula for Rating IVDS Based on Incapacitating Episodes for Code 5243. The January 2020 VA examiner, for example, found the Veteran to have IVDS but no episodes of acute signs and symptoms that required prescribed bed rest. Regarding neurological impairment, the Veteran has already been granted service connection for right upper extremity radiculopathy (rated 20 percent disabling) and left upper extremity (rated 20 percent disabling), both of which are associated with the cervical spine degenerative disc disease; evaluation of such disabilities are not at issue. The lay and medical evidence is against a finding that he has any other neurological abnormality associated with his cervical spine disability. For the foregoing reasons, the Board finds that the evidence supports an initial 30 percent, and no higher, rating for the Veteran's cervical spine disability under Code 5243. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.