Citation Nr: 21071127 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 11-09 425 DATE: November 29, 2021 ORDER Entitlement to a rating in excess of 30 percent for the service-connected cervical spine strain from February 18, 2016 is denied. FINDING OF FACT Since February 18, 2016, the Veteran's cervical spine strain has not been manifested by unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent from February 18, 2016 for a cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1999 to June 1999, and from July 2000 to June 2005. A December 2018 Board of Veterans' Appeals (Board) decision granted an increased rating to 30 percent for the cervical spine disability from February 19, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which resulted in a November 2019 Joint Motion for Partial Remand (JMPR). [The parties agreed that assignment of a 30 percent rating for the cervical spine strain from February 19, 2016 is a favorable finding and should not be disturbed.] A November 2019 Court Order remanded the matter of entitlement to a rating in excess of 30 percent from February 19, 2016 for the cervical spine strain for action consistent with the JMPR, to include addressing whether the Veteran is entitled to a separate disability rating for radiculopathy. In April 2020 and March 2021, the Board remanded this matter for further development. During the pendency of the claim, an August 2021 rating decision granted service connection for bilateral upper extremity radiculopathy associated with the service-connected cervical strain and, in so doing, assigned a 40 percent evaluation from February 18, 2016 for right upper extremity radiculopathy and a 30 percent rating from February 18, 2016 for left upper extremity radiculopathy. This grant satisfies the basis of the JMPR. Further, if the Veteran disagrees with the ratings or effective dates assigned to her now service-connected bilateral upper extremity radiculopathy, she has time to appeal those determinations. Increased Rating Cervical Spine Disability The Veteran is currently assigned a 30 percent disability rating from February 18, 2016 for her service-connected cervical spine disability. 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242), 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 disability rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate V. For VA compensation purposes, unfavorable ankylosis is 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. See 38 C.F.R. § 4.71a, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. DC 5243, which evaluates impairment resulting from intervertebral disc syndrome (IVDS) based on incapacitating episodes, provides for a 40 percent rating is warranted when there are 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 when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as 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. 38 C.F.R. § 4.71a. At the most recent April 2021 VA examination, the examiner diagnosed the Veteran with a cervical strain with bilateral upper extremity radiculopathy status-post surgery. The Veteran reported daily flare-ups described as moderate pain, precipitated by prolonged driving, reading, and heavy lifting, alleviated by rest, and lasting between 30 minutes to one hour. She described having functional loss with difficulty in heavy lifting, prolonged driving, and limited range of motion. Range of motion testing reflected 30 degrees of forward flexion. Pain was noted on the examination. Following repetitive use testing, forward flexion was limited to 25 degrees. It was noted that pain and lack of endurance significantly limit functional ability with repeated use over time and during flare-ups, causing functional loss described as forward flexion limited to 20 degrees, and 15 degrees, respectively. The examination was not conducted during a flare-up. There was no muscle atrophy. Ankylosis was not present. IVDS was also not present. The examiner noted the functional impact of the Veteran's cervical spine strain as neck pain, stiffness, limited range of motion, and difficulty with lifting over 40 pounds. The Veteran reported experiencing signs and symptoms of radiculopathy. However, as previously stated, the recent August 2021 rating decision granted service connection for bilateral upper extremity radiculopathy. That grant satisfied the basis of the JMPR. Further, the Veteran has not appealed the ratings, or effective dates, assigned to these now service-connected disabilities. Accordingly, no further discussion of her upper extremity radiculopathy is warranted herein. After a complete and thorough review of the record, the Board finds that the service-connected cervical strain has not manifested by unfavorable ankylosis of the entire cervical spine. The current symptomatology includes pain, and limited forward flexion, at worst, to 15 degrees. Without a showing of unfavorable ankylosis of the entire cervical spine, the next higher rating of 40 percent for the cervical spine strain is not warranted. Moreover, as IVDS has not been demonstrated, an increased rating under DC 5243 for IVDS based on incapacitating episodes is not warranted. The Board has also considered whether separate compensable ratings are warranted for other neurological abnormalities associated with the service-connected cervical spine disability. However, other than the now service-connected bilateral upper extremity radiculopathy, no such neurological abnormalities associated with the service-connected cervical spine strain have been shown. Accordingly, separate compensable ratings based on such associated problems are not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.