Citation Nr: 21070298 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-31 521A DATE: November 23, 2021 ORDER Entitlement to a rating of 30 percent and no higher for spondylosis of the cervical spine prior to January 22, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 30 percent for spondylosis of the cervical spine from January 22, 2019 is denied. Entitlement to a rating of 50 percent and no higher for tension headaches associated with spondylosis of the cervical spine is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a compensable initial rating for traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 8, 2013 is remanded. Entitlement to special monthly compensation (SMC) for need of aid and attendance is remanded. FINDINGS OF FACT 1. Prior to January 22, 2019, the Veteran's spondylosis of the cervical spine was manifested by flexion limited, at worst, to less than 15 degrees. 2. From January 22, 2019, the Veteran's spondylosis of the cervical spine is not manifested by favorable ankylosis of the entire cervical spine. 3. The Veteran's tension headaches manifest as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent and no higher for spondylosis of the cervical spine prior to January 22, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating higher than 30 percent for spondylosis of the cervical spine after January 22, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. The criteria for a rating of 50 percent and no higher for tension headaches associated with spondylosis of the cervical spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to July 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision. During the pendency of the appeal, a November 2017 rating decision assigned a rating of 20 percent effective April 5, 2016 for spondylosis of the cervical spine. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2017. A transcript of that hearing is of record. These matters were remanded by the Board in April 2018. An April 2020 rating decision assigned a 30 percent rating for spondylosis of the cervical spine effective January 22, 2019. A December 2020 rating decision granted entitlement to a TDIU effective November 8, 2013. These matters were remanded again in April 2021. An August 2021 a rating decision found that May 2006 rating decision included clear and unmistakable error (CUE) in granting service connection for spondylosis of the cervical spine with headaches; the error was to not assign a separate rating for tension headaches. In that rating decision, the Agency of Original Jurisdiction (AOJ) assigned a noncompensable rating for tension headaches effective October 6, 2005. At the time that the Veteran filed his claim for an increased rating for the cervical spine the disability was rated as spondylosis of the cervical spine with headaches. The Veteran argued over the course of the appeal that he should be assigned a separate rating for his headaches. For these reasons, the Board finds that it has jurisdiction over entitlement to a compensable rating for tension headaches as part of the appeal for an increased rating for the cervical spine disability. The Board finds that entitlement to SMC based on the need for aid and attendance was reasonably raised by the record as part of the increased rating claims in a September 2015 lay statement by the Veteran's girlfriend, and is addressed in the remand below. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to a rating higher than 10 percent prior to April 5, 2016, and higher than 20 percent from April 5, 2016 to January 22, 2019, for spondylosis of the cervical spine The Veteran contends that he should be assigned a higher rating for his spondylosis of the cervical spine. The changes to the musculoskeletal rating criteria effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. DC 5237 was not affected by the changes to the musculoskeletal rating criteria. The Veteran's spondylosis of the cervical spine was rated under DC 5242 and then was changed to DC 5237 by the April 2020 rating decision that assigned a 30 percent effective January 22, 2019. The rating schedule indicates that that disabilities rated under these DC should be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, General Rating Formula for Diseases and Injuries of the Spine. 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. 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 Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic 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. The Veteran's treatment records do indicate paresthesias and pain in the right upper extremity. However, a June 2015 VA treatment note indicates that these symptoms are due to carpal tunnel syndrome without evidence of radiculopathy. A September 2017 electromyography (EMG) found evidence consistent with carpal tunnel syndrome, and noted that previous studies found no electrodiagnostic evidence of cervical motor radiculopathy affecting the right C5-T1 nerve roots. The July 2009 and April 2016 VA examinations both indicated normal neurological or sensory exams of the upper extremities. Therefore, the record does not contain evidence of cervical radiculopathy. Although the VA examinations during the period prior to January 22, 2019 provide range of motion readings that range from 30 to 35 degrees of flexion, the range of motion readings in the treatment record are more restrictive. The full range of motion of the cervical spine is 0 to 45 degrees of flexion. 38 C.F.R. § 4.71a, Plate V. May 2015 and June 2015 VA treatment notes indicate that his cervical flexion was limited to 25 percent with pain. 25 percent of full flexion would be approximately 11 degrees. As this is less than 15 degrees of cervical flexion, the Veteran's symptoms are consistent with the assignment of a 30 percent rating prior to January 22, 2019. A rating higher than 30 percent is not warranted because there is no evidence of unfavorable ankylosis of the entire cervical spine. The Veteran has argued that he should be assigned a 100 percent because he has ankylosing spondylitis and he believes it affects the cervical and lumbar spines, and thus should be considered unfavorable ankylosis of the entire spine. Although the Veteran has a diagnosis of ankylosing spondylitis, he does not have the symptom of unfavorable ankylosis of the cervical spine, much less the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In this case, there is no indication that the Veteran's cervical spine is fixed in flexion or extension. Even the most limited measurements of record indicate that he does have some degree of movement, which means his entire cervical spine is not fixed in place. Moreover, the April 2016 VA examination specifically found no ankylosis. Therefore, the Board may not assign a rating higher than 30 percent under the General Rating Formula for Diseases and Injuries of the Spine. The April 2016 VA examination found no intervertebral syndrome (IVDS), and there is no indication in the record of physician-prescribed bed rest with a total duration of at least 4 weeks in a 12-month period. Therefore, there are no grounds to assign a rating higher than 30 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. For the foregoing reasons, the Board assigns a rating of 30 percent and no higher for spondylosis of the cervical spine prior to January 22, 2019. 2. Entitlement to a rating higher than 30 percent for spondylosis of the cervical spine from January 22, 2019 The Veteran has been assigned a 30 percent rating from January 22, 2019, but contends he should be assigned a higher rating because he has ankylosing spondylosis, which he believes is the equivalent of unfavorable ankylosis of the entire spine. As discussed above, although the Veteran has a diagnosis of ankylosing spondylosis, he does not have ankylosis of the entire cervical spine. The January 2019 and May 2021 VA examinations found no ankylosis of the spine. The January 2019 examination explains that the Veteran has some, although minimal, movement of the spine and does not have ankylosis of the spine per required definition. The Board concurs as the record indicates that the Veteran has some degree of movement, which means that his cervical spine is not fixed in flexion or extension, and thus does not meet the requirements for unfavorable ankylosis. The January 2019 and May 2021 VA examinations found no IVDS, and there is no indication in the record of physician-prescribed bed rest with a total duration of at least 4 weeks in a 12-month period. Therefore, there continue to be no grounds to assign a rating higher than 30 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. The January 2019 VA examination notes the decreased sensation in the right upper extremity discussed above, but found no radicular signs or symptoms. The examiner found that the Veteran's general diminished sensation of the right arm did not have a definite radicular pattern, and that the cause cannot be determined on this examination. Considering these findings and the fact that the Veteran's right upper extremity symptoms were attributed to carpal tunnel syndrome in the treatment records discussed above, the Board finds no evidence of cervical radiculopathy of the upper right extremity. For the foregoing reasons, entitlement to a rating higher than 30 percent for spondylosis of the cervical spine from January 22, 2019, must be denied. 3. Entitlement to a rating of 50 percent and no higher for headaches associated with spondylosis of the cervical spine As noted in the introduction, the Veteran's cervical spine disability was characterized as spondylosis of the cervical spine with headaches at the time that he began this appeal, and he has argued that he should be assigned a separate rating for his headaches. The January 2019 VA examination found that the Veteran's headaches are clinically related to his cervical spine. Therefore, it is appropriate for the Veteran's appeal to encompass entitlement to a compensable rating for headaches. The Veteran's tension headaches are rated under DC 8100. Under DC 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the maximum available schedular evaluation for headaches is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The phrase "characteristic prostrating attacks" was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase "very frequent" connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. The rating criteria also do not define "severe economic inadaptability." Severe economic inadaptability does not mean a claimant is completely unable to work, and VA conceded that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). In this case, a September 2015 VA examination found prostrating attacks of non-migraine headaches more frequently than once per month, and very frequent prostrating and prolonged attacks of non-migraine headache pain. The functional impact was that the Veteran cannot work when having a headache. A May 2021 examination found severe debilitating headaches that occur 3-4 times a week lasting from 2-6 hours. The Veteran reported that when he gets these headaches he will hydrate and lie down in a quiet room. In spite of this report, the examiner inexplicably found no characteristic prostrating attacks. The examiner noted that the functional impact of these headaches occurring 3-4 times a week that resolve in 30 minutes to 6 hours and require retreating to a cold dark room is that they would limit the Veteran's ability to comply with a regular work headache. Although the May 2021 examiner found no characteristic prostrating attacks, the Board finds that headaches that require the Veteran to lie down in cold dark room until they resolve constitute characteristic prostrating attacks. Therefore, the Veteran's tension headaches include characteristic prostrating attacks 3-4 times per week. The September 2015 VA examination found that the Veteran cannot work during a headache. The Board finds that headaches that prevent the Veteran from working for anywhere from 30 minutes to 6 hours, and which occur 3-4 times per week, are very frequent and are productive of severe economic inadaptability. Although the Veteran has not described specific instances in which his headaches, as opposed to pain in his cervical spine and other service-connected disabilities, have caused him difficulties at work, the Board notes that "productive of severe economic inadaptability" need not actually cause a veteran to become unemployable. The phrase can include symptoms "capable of producing" severe economic inadaptability, and in this case, headaches that prevent him from working for substantial periods of time 3-4 times per week are capable of producing economic inadaptability. Indeed, the May 2021 examiner noted that the Veteran's headaches would limit his ability to comply with a regular work schedule. 50 percent is the highest rating available under the rating schedule for headaches. The record does not reflect any symptoms attributed to headaches that might be grounds for a higher rating under a different DC. The Veteran has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the foregoing reasons, the Board finds that the Veteran's headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. Therefore, the Board will assign a rating of 50 percent and no higher. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for TBI is remanded. The May 2021 VA examination was conducted by an internist, rather than a neurologist or other appropriate specialist. The examiner wrote that he could not differentiate TBI symptoms and psychiatric symptoms because they overlap, but it is unclear which of the symptoms and facets listed in the May 2021 TBI examination overlap with psychiatric symptoms. Upon remand, a new TBI examination should be conducted by an appropriate specialist to appropriately distinguish the psychiatric symptoms from the TBI symptoms, and identify which symptoms noted in the examination are overlapping TBI and psychiatric symptoms, and which are attributed solely to TBI. 2. Entitlement to TDIU prior to November 8, 2013 is remanded. Because a decision on the remanded issue of entitlement to a compensable rating for TBI could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. 3. Entitlement to SMC for need of aid and attendance A September 2015 lay statement from the Veteran's girlfriend states that she has to help the Veteran on a daily basis with getting dressed or undressed, specifically putting on or taking off his shirt and bending over to put on pants or put on socks and shoes, because of his various disabilities, including the cervical spine disability. The Board finds that this statement reasonably raises the issue of entitlement to SMC based on the need for aid and attendance. To date, that issue has not been developed by the AOJ. Accordingly, on remand the AOJ should undertake all appropriate development and then adjudicate the Veteran's SMC claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a neurologist or other appropriate specialist to determine the current severity of his service-connected TBI. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should state whether it is possible to distinguish the Veteran's psychiatric symptoms from his TBI symptoms, and if so, they must clearly state which symptoms are attributed to each disability. If it is not possible to distinguish the psychiatric symptoms from the TBI symptoms, the examiner must so state, and explain which of the symptoms listed in the TBI examination overlap with the Veteran's psychiatric symptoms, and which are attributed solely to the TBI. 2. Undertake all appropriate development to adjudicate the Veteran's claim for special monthly compensation based on the need for aid and attendance of another person, including scheduling an examination if appropriate. The AOJ is advised that the Veteran's girlfriend wrote in a September 2015 statement that the Veteran requires her assistance to dress due to his various disabilities, including the cervical spine disability, and that the SMC claim was raised as part of the issues on appeal of entitlement to an increased rating for service-connected spondylosis of the cervical spine and TBI. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to November 8, 2013. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.