Citation Nr: 21071152 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 13-09 588A DATE: November 29, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to September 28, 2013, for the Veteran's cervical spine degenerative disc disease (DDD) and in excess of 20 thereafter is denied. FINDINGS OF FACT 1. Prior to September 28, 2013, the Veteran's cervical spine disability did not result in forward flexion limited to 30 degrees or less; combined range of motion limited to 170 degrees or less; muscle spasm or guarding severe enough to result in abnormal spinal contour; or ankylosis of the spine. 2. From September 28, 2013, the Veteran's cervical spine disability is not manifested by forward cervical flexion to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. Prior to September 28, 2013, the criteria for a rating in excess of 10 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From September 28, 2013, the criteria for a rating in excess of 20 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) following June 2017, May 2019, and January 2021 Board remands. This matter was originally on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes a claim for service connection for migraine headaches was also on appeal. An August 2021 rating decision granted service connection for migraine headaches with an evaluation of 0 percent, effective September 9, 2009, and an evaluation of 30 percent from December 7, 2017. Therefore, this issue is no longer on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 a 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. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating an 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. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to a disability rating in excess of 10 percent prior to September 28, 2013, for the Veteran's cervical spine degenerative disc disease (DDD) and in excess of 20 thereafter The Veteran contends that he is entitled to a higher rating because the current rating does not accurately reflect the severity of his cervical disability. The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which compensates for spinal disabilities manifested by lumbosacral or cervical strain and applies the General Rating Formula for Diseases and Injuries of the spine. Given the degenerative nature of the Veteran's disabilities, DC 5242 is also potentially applicable, as it compensates for degenerative arthritis of the spine, although it also applies the General Rating Formula. Under the applicable diagnostic criteria, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. the thoracolumbar and cervical spine segments are to be evaluated separately, except in the situation of unfavorable ankylosis of both segments, at which point they are combined and rated as a single disability. Id. note (6). 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. Prior to September 28, 2013 In June 1998 the Veteran was service connected for mild degenerative disc disease of the cervical spine with an evaluation of 10 percent, effective July 23, 1997. In an August 2008 statement the Veteran indicated his condition had worsened. October 2008 VA treatment records show complaints of neck pain. April 2009 VA treatment records show the Veteran complained of severe sharp pain in his neck. A January 2009 rating decision continued the Veteran's 10 percent rating. In September 2009 the Veteran submitted a statement indicating his neck condition had worsened. The Veteran was afforded a VA examination in February 2010. The examiner noted no reported spasms or atrophy. The Veteran's flexion was to 45 degrees, extension to 45 degrees, left lateral flexion to 45 degrees, left lateral rotation to 80 degrees, right lateral flexion to 45 degrees and right lateral rotation to 80 degrees. The examiner noted no objective evidence of pain on active range of motion and no additional limitation after repetition. In addition, the examiner noted the Veteran did not experience ankylosis of the cervical spine. A May 2010 rating decision continued the Veteran's 10 percent rating for a cervical spine disability. In March 2011 the Veteran submitted a notice of disagreement (NOD) with the May 2010 rating decision. After review of the competent and probative evidence, the Board finds that for the period prior to September 28, 2013 on appeal, the weight of the evidence does not support a finding that the Veteran's disability picture meets the next-higher disability rating of 20 percent. The Veteran's forward flexion of the cervical spine was greater than 30 degrees and there was no evidence of ankylosis per VA examination conducted in 2010 and there is no additional competent evidence indicating a cervical disability meeting a higher rating prior to September 28, 2013. Therefore, the weight of the evidence does not support a finding that the Veteran's disability picture warrants a higher rating of 20 percent disability rating. The Board acknowledges the Veteran's contention of chronic neck pain. However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Moreover, the Board has considered the Deluca and Mitchell factors, and the relevant evidence of record. The Board finds that the current 10 percent rating already contemplates and compensates the Veteran for any functional loss of the cervical spine, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45 as the Veteran is being compensated for such with the current rating. In addition, the evidence of record as of September 28, 2013, does not indicate that the Veteran experienced incapacitating episodes of IVDS. Additional compensable neurological manifestations are not shown or reported, and further separate ratings for neurological manifestations are not warranted. In so finding, the Board notes that the Veteran is competent to report on symptoms and sincere in his belief that he is entitled to a higher rating. His lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the neck impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of the Veteran's impairment. From September 28, 2013 In a September 2013 statement the Veteran indicated his neck condition had worsened. In April 2014, the Veteran's co-worker T.D submitted a statement that she has witnessed the Veteran suffering from extreme pain on a constant basis and his neck, back, and left hand seem to be the source of the pain. She indicated that his pain has been so bad she has witnessed him in tears. Another co-worker, G.W., stated he has noticed on several different occasions, the Veteran had issues with his neck to the point it has hindered his work performance. In March 2014, the Veteran was afforded a VA examination. The examiner indicated the Veteran did not report flare-ups. The Veteran's flexion was to 25 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, left lateral rotation to 80 degrees, right lateral flexion to 25 degrees and right lateral rotation to 25 degrees. The examiner noted no additional limitation after repetition. The examiner noted the Veteran experienced functional loss/impairment. In addition, the examiner noted the Veteran did not experience muscle spasm, muscle atrophy, or ankylosis of the cervical spine. In addition, the examiner indicated the Veteran did not experience IVDS. An April 2014 rating decision increased the Veteran's evaluation for a cervical spine disability to 20 percent, effective September 28, 2013. In an October 2016 thoracolumbar spine exam, the examiner indicated the Veteran experienced IVDS. The examiner indicated the Veteran reported he had to take three days off of work due to back pain. The examiner indicated the Veteran's episodes of bed rest over the past 12 months had a total duration of less than one week. The Board notes a November 2016 rating decision increased the Veteran's evaluation of intervertebral disc syndrome to 40 percent (previously rated as mechanical low back pain), effective July 19, 2016. In December 2017 the Veteran was afforded a new VA examination. The Veteran reported pain in his neck all the time, stiffness with any movement. In addition, he stated he must keep it warm and has tried everything, but it does not help with the stiffness. The examiner indicated the Veteran reported flare-ups that are due to quick turn of the neck or movement "the wrong way." The Veteran's flexion was to 20 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, left lateral rotation to 40 degrees, right lateral flexion to 20 degrees and right lateral rotation to 40 degrees. The examiner reported pain noted on examination and causes functional loss. The examiner reported there was no evidence of pain with weight bearing. The examiner did not estimate the Veteran's range of motion with flare-ups. The examiner indicated muscle spasms do not result in abnormal gait or spinal contour. In addition, the examiner indicated the Veteran did not experience ankylosis. The examiner indicated the Veteran's IVDS presented as episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. Further, the examiner indicated there was evidence of pain on passive range of motion testing and when used in non-weight bearing. The May 2019 Board decision remanded the Veteran's claim for an increased evaluation for a cervical spine disability because the December 2017 examiner stated that the Veteran experiences flare-ups. However, the clinician stated that she was unable to state the extent of the additional limitation without resorting to speculation because the Veteran was not currently experiencing a flare-up. No further explanation was provided. Thus, the examiner did not provide sufficient reasoning for finding that the additional loss in range of motion caused by flare-ups could not be estimated. In February 2021 the Veteran was afforded a VA examination. The examiner noted the Veteran reported flare-ups occurring daily. The neck flare-ups are mild to severe by the end of the day last constant and are precipitated by raising arms over the head, laying in a bad position, driving, walking, sitting, or standing too long. In addition, the flare-ups are alleviated by ice, heat, rest, medications, and contour pillow. The Veteran reported functional loss as an inability to lift more than five pounds and brush his hair for more than a few seconds because this triggers head and neck pain. Further, he has trouble getting dressed some days because his neck hurts if he has his arms raised for too long, and he cannot work out, and cannot drive for more than 30 minutes. Additionally, he cannot run, jump, walk for more than ten minutes, or sit for more than five to ten minutes. The Veteran's flexion was to 25 degrees, extension to 25 degrees, left lateral flexion to 25 degrees, left lateral rotation to 25 degrees, right lateral flexion to 20 degrees and right lateral rotation to 25 degrees. The examiner indicated pain causes functional loss. The examiner indicated that the Veteran was being evaluated during a flare-up and demonstrated flexion to 25 degrees, extension to 25 degrees, left lateral flexion to 25 degrees, left lateral rotation to 25 degrees, right lateral flexion to 20 degrees and right lateral rotation to 25 degrees. The examiner indicated there was no additional loss of function or range motion after three repetitions. The examiner reported the Veteran did not experience muscle spasms, or ankylosis. The examiner indicated the Veteran did not experience IVDS of the cervical spine. In addition, the examiner indicated he could not perform passive range of motion because he was medically contraindicated (e.g., it may cause the Veteran severe pain or the risk of further injury). After a review of the competent and credible medical and lay evidence of record, the Board finds that the preponderance of the probative evidence of record fails to establish entitlement to a rating in excess of 20 percent for a cervical spine disability. Throughout the period on appeal, the Veteran's cervical spine disability manifested with pain, stiffness, and mild to moderate restriction of motion with flexion limited from 20 to 25 degrees. Furthermore, treatment records do not show additional diagnoses of any conditions or symptoms which would warrant a rating higher than those noted in the VA examinations. Specifically, the evidence does not show that the Veteran has any form of ankylosis that would warrant a higher rating. The Board notes the Veteran has been rated separately for IVDS associated with his low back condition. Additionally, the Veteran is also separately rated for bilateral lower extremity radiculopathy associated with IVDS. At worst, VA examination has indicated forward flexion of the cervical spine was 20 to 25 degrees with pain after three repetitions and during flare-ups. There is no evidence that the Veteran's cervical spine disability manifested with forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine, to warrant a 30 percent rating. To the extent that the Veteran has asserted that he has limited tolerance for prolonged sitting, standing, or walking because of the pain that he experiences, the Board finds that the VA examiner has fully considered these factors as discussed above, and the respective evaluations contemplate pain and how it affects the Veteran. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After considering the effects of pain and functional loss, neither forward flexion of the cervical spine was 15 degrees or less nor favorable ankylosis of the entire cervical spine was shown at any time during the appeal period to warrant an increased 30 percent rating. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 20 percent for a cervical spine disability. As stated above, the criteria for a rating in excess of 20 percent for a cervical spine disability includes flexion of 15 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks in the previous 12 months. Nevertheless, the Veteran's flexion was consistently measured in excess of 15 degrees throughout the period on appeal, and the Veteran did not manifest any ankylosis throughout the period on appeal. Finally, the Veteran did not manifest a total duration of incapacitating episodes in excess of four weeks in any 12-month period throughout the period on appeal. Therefore, the weight of the evidence indicates that the Veteran did not meet the criteria for a disability rating of 20 percent throughout the period on appeal. The Board recognizes the limitations that the Veteran has as a result of his service-connected disability. However, these limitations, including the Veteran's pain and interference with daily activities have been considered in the rating assigned. In so finding, the Board notes that the Veteran is competent to report on symptoms and sincere in his belief that he is entitled to a higher rating. His lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the neck impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of the Veteran's impairment. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent prior to September 28, 2013, and 20 percent from September 28, 2013, for his cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.