Citation Nr: 21070292 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 09-04 524 DATE: November 23, 2021 ORDER Prior to April 2, 2014, an initial rating in excess of 10 percent disabling for a cervical spine condition is denied. FINDING OF FACT Prior to April 2, 2014, the Veteran's cervical spine condition manifested limitation of motion no worse than forward flexion of 35 degrees and a combined range of motion of the cervical spine no worse than 185 degrees with flare-ups. CONCLUSION OF LAW Prior to April 2, 2014, the criteria for an initial rating in excess of 10 percent for a cervical spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to July 2005. The case is on appeal from an August 2006 rating decision. The claim was last before the Board in June 2021. At that time, the Board remanded the claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 10 percent for a cervical spine condition prior to April 2, 2014. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's cervical spine disability is rated under DC 5237, which is rated according to The General Rating Formula for evaluating the spine. 38 C.F.R. § 4.71a. The General Rating Formula provides for a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; 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 disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Board notes VA revised the rating criteria for evaluating spine disorders, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020, as amended). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to the rating criteria evaluating disorders of the spine have no impact on the Veteran's cervical spine rating. Facts Pursuant to the Board's December 2018 remand, a retrospective VA medical opinion concerning range of motion findings prior to April 2, 2014, was obtained in August 2019. However, the VA examiner neglected to contact the Veteran regarding information on flare-ups, symptoms, or functional loss during repetitive use for the relevant period. As such, the Board found the opinion inadequate. In September 2020, the Board found another medical examination and addendum opinion were required. Having provided the Veteran an over-the-phone interview, a February 2021 VA review of the records was conducted, and a March 2021 VA addendum opinion was submitted. The examiner concluded he was unable to provide an approximate range of motion during flare-ups and repeated use without resorting to speculation due to an absence of range of motion measurements from 2005 to 2014. The Board found the February 2021 examiner failed to provide a clear rationale, by only providing a small summary of the Veteran's treatment records and not discussing a July 2020 private medical opinion which indicated it possible that the Veteran's condition worsened between 2006 and 2014. Additionally, the March 2021 addendum opinion simply provided there were no range of motion testing measurements to review and neglected to consider the x-rays provided by the Veteran's private treatment provider. As such, the Board again remanded the claim. An August 2021 VA medical opinion was provided. After trying numerous times to reach the Veteran and reviewing the evidence of record, the VA examiner provided a retrospective opinion concerning range of motion findings prior to April 2, 2014. The examiner noted that range of motion measurements from June 2013 were the only measurements that could be used to determine additional functional impairment on repeated use over time or during flare-ups. She also reviewed the private treatment records to aid in the determination of an estimate of the severity of the Veteran's cervical spine condition prior to April 2, 2014. The examiner noted the following measurements from June 2013: forward flexion of 45 degrees, extension of 45 degrees, right flexion of 35 degrees, left flexion of 30 degrees, right rotation of 70 degrees, and left rotation of 20 degrees. She then provided, based on her clinical experience, that one could expect a 5 to 10 degree loss in range of motion during flares or repeated use. As such, based on the Veteran's prior description of his flare-up severity, frequency, duration, and/or functional loss manifestations, the additional functional impairment on repeated use or during flare-ups resulted in: forward flexion of 35 degrees, extension of 35 degrees, right flexion of 25 degrees, left flexion of 20 degrees, right rotation of 60 degrees, and left rotation of 10 degrees. The combined range of motion was 185 degrees. The examiner also noted, in particular, the Veteran's July 2020 private treatment records stating it is possible that his condition worsened between 2006 and 2014, along with the EMGs and x-rays provided in the May 2013 treatment records. The examiner noted the evidence of record was consistent with worsening of his degenerative disease during this period. Analysis The Board finds that an initial rating in excess of 10 percent for the Veteran's cervical spine condition is not warranted for the earlier rating period. In this regard, the evidence of record does not show that the Veteran experienced forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. Additionally, the Veteran's combined range of motion of the cervical spine was greater than 170 degrees, even considering his flare-ups. The Veteran's flexion was limited to 45 degrees and the combined range of motion was 245 degrees at the time of the June 2013 VA examination. In addition, the examiner who provided the August 2021 retrospective opinion determined that flexion and extension were limited to 35 degrees, right flexion to 25 degrees, left flexion to 20 degrees, right rotation to 60 degrees, and left rotation to 10 degrees, during flare-ups. These degrees of limited motion and the combination thereof are more consistent with the 10 percent rating of forward flexion being greater than 30 degrees but not greater than 40 degrees. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional impairment, due to weakness, stiffness, swelling, pain, and tenderness in the neck and back, with flare-ups as often as 5 to 6 times a day. However, even considering the Veteran's lay reports of symptoms and noted functional impairment, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating 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. He had, at worst, flexion limited to 35 degrees and a combined range of motion of 245 degrees during flare-ups, as determined by the examiner who provided the August 2021 retrospective opinion. As such, his limitations are contemplated by the current 10 percent rating. Additionally, while the VA scheduled a VA examination in August 2021 for a retrospective medical opinion which could have supported the claim, the Board noted the claimant bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (Fed. Cir. 2009). As discussed above, in this case, the Veteran failed to provide the August 2021 VA examiner with a statement during the appeal period. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street and that Veterans should provide information or materials relevant to their claim to VA so that VA may assist in development of the claim). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for his cervical spine condition prior to April 2, 2014, and the benefit of the doubt is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, an initial rating in excess of 10 percent prior to April 2, 2014 is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.