Citation Nr: 21071445 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-07 101 DATE: November 30, 2021 ORDER A disability rating of 30 percent, but no higher, for the service-connected cervical spine strain, prior to August 25, 2016, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, prior to August 25, 2016, his cervical spine strain more nearly approximated forward flexion of the cervical spine to 15 degrees or less. Ankylosis was not shown prior to August 25, 2016. CONCLUSION OF LAW Prior to August 25, 2016, the criteria for a rating of 30 percent, but no higher, for the service-connected cervical spine strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to May 2008. In February 2019, the Board of Veterans' Appeals (Board) denied a disability rating in excess of 20 percent for the service-connected cervical spine strain prior to August 25, 2016. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). The Court granted a September 2019 Joint Motion for Partial Remand (JMPR). The case was previously remanded by the Board in July 2020, February 2021, and June 2021 for further evidentiary development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran's entire history is to be considered when assigning disability ratings. 38C.F.R. §4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating In Excess Of 20 Percent Before August 25, 2016 Cervical Spine Strain The Veteran asserts entitlement to an increased rating for his service-connected cervical spine disability prior to August 25, 2016, when a 20 percent disability rating was in effect for his service-connected cervical spine strain. By way of history, in a September 2019 JMPR, the Court vacated the February 2019 Board's decision with respect to the Board's denial of disability rating in excess of 20 percent for a cervical spine strain, prior to August 25, 2016, and remanded the claim for compliance with the JMPR. The Court found that the Board had erred in failing to comply with its duty to assist requirements and failed to provide an adequate medical opinion. Specifically, the parties found that the December 2008 and November 2009 VA examiners did not give an opinion as to whether pain could significantly limit functional ability during flare-ups or during repeated use over time and therefore did not comply with § 4.59, Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The parties found that the examination lacked sufficient detail necessary for a disability rating. After the September 2019 JMPR, the Board remanded this matter in July 2020, February 2021, and June 2021 to obtain a retrospective opinion that addresses the nature and severity of the Veteran's cervical spine disability prior to August 25, 2016. Indeed, after thorough review of the evidence of record, the Board finds that a disability rating of 30 percent is warranted for his cervical spine strain. Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Code 5237), 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 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. This disability may be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating 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 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, DC 5243. 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 or treatment by a physician. 38 C.F.R. § 4.71a. Despite the inadequacies of the December 2008 and November 2009 VA examinations, at such times, the Veteran reported progressive worsening of his cervical spine disability. At the December 2008 examination, he described pain as a 4/5, with worse pain in the morning and neck stiffness after sitting for more than one hour. He also reported flare-ups of worsening pain, which he described as an 8/10. Likewise, at the November 2009 examination, he complained of pain, stiffness, weakness, and decreased range of motion. He described pain as a 6-7/10 on a regular basis and daily flare-ups of worsening pain which he described as a 9/10. On examination, his range of motion included forward flexion to 40 degrees. The record also contains a December 2008 private physician note indicating a review of the Veteran's MRI scan revealed cervical stenosis. The physician reported that epidural injections would be tried for his cervical stenosis. VA clinical notes dated in March 2010 and December 2011 reflect that the Veteran continued to be seen for chronic neck pain. Evaluations performed on these dates, however, show that range of motion of his cervical spine was relatively normal, albeit with "tightness" and painful motions. At an August 2016 VA examination, the Veteran He reported worsening of his neck symptoms including, pain, stiffness, and flare-ups. The examiner noted that a physical examination revealed IVDS. Range of motion testing revealed zero to 30 degrees of forward flexion with painful motion. During repetitive motion, forward flexion was reduced to 25 degrees; thereafter, during repeated use over time, forward flexion was further reduced to 20 degrees. Based on the above, the examiner noted that factors causing additional functional loss included pain and lack of endurance. During flare-ups, the examiner estimated that the Veteran's forward flexion was even further reduced, from zero to 15 degrees. On physical examination, no ankylosis of the cervical spine was noted. Although IVDS of the cervical spine was noted, the Veteran had not experienced any episodes of acute signs and symptoms of IVDS that required bed rest over the past 12 months. Pursuant to the June 2021 Board remand, an opinion was obtained addressing the severity of the Veteran's cervical spine condition prior to August 25, 2016. After review of the medical records with regard to the December 2008 and November 2009 VA examinations, the examiner opined that the estimated ranges of motion for the Veteran's cervical spine prior to August 25, 2016 during both flare-ups and repeated use over time included forward flexion to 40 degrees, extension to 35 degrees, bilateral lateral flexion to 40 degrees, and bilateral lateral rotation to 65 degrees. However, there was no rationale provided for making such particular estimates. It is unclear whether the examiner elicited information from the Veteran regarding the severity, frequency, duration, and functional loss manifestations of his flare-ups or during repeated use over time, prior to August 25, 2016, as such information was not documented in the opinion. Given the above, the Board finds that an initial rating of 30 percent for the Veteran's cervical spine strain is warranted. In addition to the most recent August 2021 VA retrospective opinion, prior retrospective opinions have proven to be inadequate for adjudication purposes. As this appeal has been the subject of multiple remands, which resulted in multiple inadequate medical opinions, the Board will resolve all reasonable doubt in the Veteran's favor at this timeto avoid remanding for yet another VA opinion which could further complicate the evidence of record by being unresponsive to the heart of this matter. Importantly, as previously noted, prior to August 25, 2016, VA examinations were conducted in December 2008 and November 2009. These examinations reflected decreased range of motion of the Veteran's cervical spine due to pain, particularly on repeated use over time. Significantly, his assertions regarding flare-ups of his neck pain on repeated use over time prior to August 25, 2016, as evidenced by the December 2008 and November 2009 VA examinations, are competent and credible assertions pertinent to this appeal, as he personally experienced such symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence of record supports the conclusion that the severity of the Veteran's cervical spine strain is essentially the same prior to August 25, 2016 as it has been shown to be following that date. 38C.F.R. §4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Thus, in resolving all reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating prior to August 25, 2016, based on limitation of flexion of the cervical spine to no worse than 15 degrees (during flare-ups and on repeated use) is warranted. In reaching this conclusion, the Board also finds that, prior to August 25, 2016, intervertebral disc disease resulting in physician-prescribed bed rest was not sure and that a rating higher than the 30 percent evaluation awarded by this decision based on such symptomatology is 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.