Citation Nr: 21071989 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-44 191 DATE: December 2, 2021 ORDER Service connection for a heart disorder is denied. An initial 10 percent rating from May 1, 2015 and continuing thereafter for a headache disorder, to include migraine and migraine variants is granted. An initial rating higher than 10 percent from May 1, 2015 and continuing thereafter for cervical spine degenerative disc disease is denied. An initial rating higher than 10 percent from May 1, 2015 and continuing thereafter for lumbar spine degenerative disc disease is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosed heart disorder. 2. With resolution of the doubt in his favor, during the entirety of the rating period on appeal, the severity of the Veteran's headache disorder manifested with characteristic prostrating attacks averaging one in 2 months over the last several months. 3. During the entirety of the rating period on appeal, cervical spine degenerative disc disease range of motion, at worst, was flexion at 45 degrees, extension at 45 degrees, right lateral flexion at 45 degrees, right lateral rotation at 80 degrees, left lateral rotation at 80 degrees, and a combined range of motion at 340 degrees without muscle spasms or guarding. 4. During the entirety of the rating period on appeal, lumbar spine degenerative disc disease range of motion, at worst, was flexion at 75 degrees, extension at 20 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 215 degrees without muscle spasms or guarding. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). 2. The criteria to establish an initial 10 percent rating for the entirety of the rating period on appeal for the Veteran's headache disorder have been approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (DC) 8100. 3. The criteria to establish an initial rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran's cervical spine degenerative disc disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5242-5237. 4. The criteria to establish an initial rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran's lumbar spine degenerative disc disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy Reserve and U.S. Navy from August 1985 to May 1988 and from May 1988 to April 2015, respectively. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Philadelphia, Pennsylvania Regional Office (RO). In April 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION HEART DISORDER Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An April 2012 private treatment record during the Veteran's active duty service reflects the Veteran's report of chest and arm pain. The private examiner noted that the Veteran had a service electrocardiogram (EKG) revealing normal sinus rhythm and the service medical examiner referred the Veteran for a private cardiac evaluation. On April 10, 2012, the private examiner diagnosed the Veteran with precordial chest pain, noted that the Veteran's symptoms "may represent angina," and scheduled the Veteran for further testing. On April 16, 2012, the Veteran underwent a private echocardiogram with the following findings: "Normal left ventricular size and normal systolic function. EF 60% (normal = 50-75%). No significant LVH. No clear cut regional wall motion abnormality. Normal left atrial size with mild mitral regurgitation. Normal mitral valve leaflets. Normal right atrial size. Normal right ventricular size with normal systolic function. No right ventricular hypertrophy. Trileaflet aortic valve with no regurgitation and no aortic stenosis. Dilated aortic root measuring 4.0 cm. Normal aortic arch. Normal tricuspid valve. Mild tricuspid regurgitation with top normal pulmonary pressure. (RVSP = 30-45.00 mmHg). Mild diastolic dysfunction abnormal relaxation. Normal pulmonic valve with mild regurgitation. The vena cava is not visualized. The pleura is normal with no pericardial effusion and normal pericardium." The private examiner indicated, based on the echocardiogram, that the Veteran's left ventricular ejection fraction (LVEF) was normal. On April 17, 2012, the Veteran underwent a private exercise stress echocardiogram revealing "With exercise all walls augment normally. Global LV function improves with exercise. No evidence of myocardial ischemia or infarction." In an August 2012 service aeromedical examination, the Veteran answered "yes" to the question of whether he then had chest pain or pressure. The service flight surgeon noted that the Veteran had mild chest pain during physical training (PT) and a cardiac workup was normal. The service flight surgeon diagnosed the Veteran with precordial chest pain and noted no further issues. In the Veteran's December 2014 pre-separation medical examination report, the service medical examiner noted no heart abnormalities. In his December 2014 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had chest pain or pressure. In April 2015, the Veteran underwent a VA separation health assessment and a chest radiograph revealed "no evidence of an acute cardiopulmonary abnormality." In an April 2016 statement, a non-VA examiner indicated that the Veteran had the following heart disorder diagnosis: "cardiomyopathy with interventricular septal hypertrophy, aortic valve dilatation, mitral valve regurgitation, pulmonic valve regurgitation, and tricuspid regurgitation based upon echocardiogram findings consistent with interventricular septal hypertrophy, aortic valve dilation, mitral valve regurgitation, pulmonic valve regurgitation, and tricuspid regurgitation along with a history of angina during active duty military service." The non-VA examiner's indication that the Veteran had a diagnosed heart disorder has low probative value because the examiner did not consider records of prior medical treatment reflecting "no evidence of myocardial ischemia or infarction" from the April 2012 private examiner and "no evidence of an acute cardiopulmonary abnormality" in the April 2015 VA separation health assessment. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that a thorough and contemporaneous medical examination is one which considers records of prior medical treatment so the evaluation of the claimed disability will be a fully informed one). The June 2016 VA examiner noted that the Veteran did not have or ever had been diagnosed with a heart disorder. The examiner indicated that the Veteran's April 2012 heart evaluation and EKG revealed normal findings, specifically a normal ejection fraction and no cardiomyopathy. The Veteran was not on any heart medications and the examiner noted that although the Veteran has shortness of breath with some activities, the shortness of breath is not necessarily a symptom of a cardiac condition because the April 2012 EKG was normal and the Veteran has not had continued care for a cardiac condition. In a May 2019 VA treatment record, a review of systems revealed no chest pain, palpitations, edema, or shortness of breath. In a January 2020 VA addendum, the examiner noted that the Veteran did not have a diagnosed cardiac condition. The Veteran denied having any symptoms and ever having been diagnosed with a heart disorder. The examiner indicated that the Veteran's April 2012 EKG was normal and the Veteran has not been treated for a cardiac condition. The January 2020 VA examiner's indication that the Veteran did not have a diagnosed heart disorder is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical diagnosis with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Green, 1 Vet. App. at 124. The law is well settled that in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A preponderance of the probative evidence is against a finding that the Veteran has or ever had a diagnosed heart disorder. The April 2012 private EKG during the Veteran's active duty service revealed "no evidence of myocardial ischemia or infarction." The August 2012 service flight surgeon noted that the Veteran's cardiac workup was normal. In the Veteran's December 2014 pre-separation medical examination report, the service medical examiner noted no heart abnormalities and in his December 2014 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had chest pain or pressure. As noted, the April 2016 non-VA examiner's indication that the Veteran had a diagnosed heart disorder is of low probative value. The January 2020 VA examiner indicated that the Veteran did not have a diagnosed heart disorder. Therefore, service connection is not warranted and the claim is denied. INITIAL RATINGS Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Headache disorder Under DC 8100, a noncompensable rating is assigned for migraines with less frequent attacks, a 10 percent rating is assigned for characteristic prostrating attacks averaging one in 2 months over the last several months, a 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months, and a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Rating Schedule does not define prostrating; however, "prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). The phrase "completely prostrating" in the 50 percent rating criteria generally means that the headache must render the veteran entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The descriptive phrase "very frequent" connotes a frequency of at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. Additionally, the term "very frequent" indicates that "headaches must be long in duration." Id. The terms "productive of severe economic inadaptability" has not been clearly defined by regulations or case law. "Productive of" can either have the meaning of producing or capable of producing. Thus, migraines need not actually produce severe economic inadaptability to assign a 50 percent rating. "Economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to unemployability. Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16. Migraine headaches in this instance must be, at a minimum, capable of producing severe economic inadaptability. The rating criteria for DC 8100 are considered successive, meaning that the claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 254, 252 (2018). In evaluating headaches under DC 8100, consideration may not be given to the ameliorative effects of medication. Jones v. Shinseki, 30 Vet. App. 56, 63 (2012). DC 8100 contemplates all symptoms experienced due to headaches. Holmes v. Wilkie, 33 Vet. App. 67 (2020). The Veteran's headache disorder is rated noncompensable from May 1, 2015 and continuing thereafter. The appellate period is from May 1, 2015. For initial rating claims, the most relevant evidence is the evidence of record from the time of the veteran's application for service connection. Fenderson v. West, 12 Vet. App. 119 (1999). However, 38 C.F.R. §§ 4.1 and 4.2 require VA adjudicators to view each disability "in relation to its history" to "accurately reflect the elements of disability present." Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that although the veteran was only entitled to disability compensation for the period after the date he filed his original claim for benefits, VA regulations still require the disability to evaluated in light of its whole recorded history). Service treatment records (STRs) dated September 1998 and September 2000 reflect the Veteran's report of headaches. In his December 2014 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had frequent or severe headaches. During the June 2016 VA examination, the Veteran reported headaches, nausea, and photosensitivity a few times per year. The Veteran's most recent migraine occurred earlier this year. The Veteran treats his headache disorder with extra strength Tylenol and napping in a dark room. The Veteran's treatment plan included taking medication, such as extra strength Tylenol. Symptoms of headache pain included pulsating or throbbing head pain and pain worsening with physical activity. Non-headache symptoms associated with headaches included nausea and light sensitivity lasting less than one day. The examiner noted no characteristic prostrating attacks of migraine/non-migraine headache pain. There were no other pertinent physical findings. The examiner indicated that the Veteran's frequency of headaches "improved and now completely gone away." In April 2019, the Board remanded the claim for the RO to obtain updated VA treatment records as to the Veteran's headache disorder. In a May 2019 VA treatment record, a review of systems revealed "no headaches." The Board will grant a 10 percent initial rating from May 1, 2015 and continuing thereafter for the Veteran's headache disorder based on the benefit-of-the-doubt doctrine under DC 8100. STRs reflect the Veteran's report of headaches. Although the June 2016 VA examiner indicated that the Veteran's frequency of headaches "improved and now completely gone away," the Veteran reported treating his headaches with extra strength Tylenol. As noted, applicable caselaw indicates that consideration may not be given to the ameliorative effects of medication. Further, although the June 2016 VA examiner noted no characteristic prostrating attacks of migraine/non-migraine headache pain, the Veteran reported napping in a dark room to treat his headache disorder which indicates "prostration" defined as "extreme exhaustion or powerlessness." The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a compensable rating is warranted, and the claim is granted. A preponderance of the evidence is against the assignment of initial rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran's headache disorder under DC 8100. The competent evidence does not show that the Veteran's headache disorder manifests on an average once a month over the last several months as evidenced by the Veteran's report of having headaches "a few times per year" and VA treatment records reflecting "no headaches." Therefore, an initial rating higher than 10 percent is not warranted, and the claim is denied. Cervical spine and lumbar spine degenerative disc disease Prior to February 7, 2021, DC 5242 was assigned for degenerative arthritis of the spine and DC 5243 for IVDS. As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS. Also amended was DC 5243 for IVDS, allowing the DC to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, otherwise DC 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating criteria under each DC was unchanged. 38 C.F.R. § 4.71a, DC 5242. Under DC 5237 for the General Rating Formula for Diseases and Injuries of the Spine, 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. 38 C.F.R. § 4.71a, DC 5237. 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. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. There are also several relevant note provisions associated with DC 5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. In Chavis v. McDonough, No. 18-2928 (April 16, 2021), the Court of Appeals for Veterans Claims (Court) found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." The Court in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. The Veteran's cervical spine and lumbar spine degenerative arthritis is rated 10 percent disabling from May 1, 2015 and continuing thereafter under DC 5242-5237. The appellate period is from May 1, 2015 for both claims. During the June 2016 VA cervical spine examination, the Veteran reported flare-ups described as neck morning stiffness and pain. The Veteran did not report functional loss. Initial range of motion testing revealed flexion at 45 degrees, extension at 45 degrees, right lateral flexion at 45 degrees, right lateral rotation at 80 degrees, left lateral rotation at 80 degrees, and a combined range of motion at 340 degrees. There was pain on motion but it did not cause functional loss and no pain with weight-bearing. The examiner noted localized tenderness and/or pain on palpation. The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use and any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups because the Veteran was not having a flare-up during the examination. The examination was not conducted during a flare-up but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner was unable to state without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the Veteran was not having a flare-up during the examination. There was no guarding, muscle spasms, or additional factors contributing to the Veteran's cervical spine disorder. Muscle strength, reflex, and sensory testing revealed normal findings. The examiner noted no muscle atrophy, radiculopathy, ankylosis, other pertinent physical findings, other neurological abnormalities, or intervertebral disc syndrome. The Veteran did not use assistive devices. During the June 2016 VA thoracolumbar spine examination, the Veteran reported flare-ups and functional loss described as pain, trouble with getting out of bed, repetitive bending, prolonged sitting, standing, and lifting. Initial range of motion testing revealed flexion at 90 degrees, extension at 30 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 240 degrees. There was pain on motion but it did not cause functional loss and no pain on weight-bearing. The examiner noted localized tenderness and/or pain on palpation. The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use but any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use. The examination was not conducted during a flare-up but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner was unable to state without mere speculation as to whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the Veteran was not having a flare-up during the examination. There was no guarding, muscle spasms, or additional factors contributing to the Veteran's lumbar spine disorder. Muscle strength, reflex, and sensory testing revealed normal findings. The examiner noted no muscle atrophy, radiculopathy, ankylosis, other pertinent physical findings, other neurological abnormalities, or intervertebral disc syndrome. The Veteran did not use assistive devices. During the January 2020 VA cervical spine examination, the Veteran reported flare-ups described as intermittent neck pain and stiffness. The Veteran did not report functional loss. Initial range of motion testing revealed flexion at 45 degrees, extension at 45 degrees, right lateral flexion at 45 degrees, left lateral flexion at 45 degrees, right lateral rotation at 80 degrees, left lateral rotation at 80 degrees, and a combined range of motion at 340 degrees. There was no pain on motion, pain with weight-bearing, localized tenderness, or pain on palpation. The Veteran performed repetitive use testing with at least three repetitions with no additional loss function or range of motion. No additional factors caused functional loss. The Veteran was not examined immediately after repetitive use but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use. The examination was not conducted during a flare-up but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no guarding, muscle spasms, muscle atrophy, radiculopathy, ankylosis, other neurological abnormalities, other pertinent physical findings, scars, or intervertebral disc syndrome. Muscle strength, reflex, and sensory testing revealed normal findings. The examiner indicated that passive range of motion testing was not performed because it was not feasible to do so in a safe and reasonable manner. Non-weight bearing testing was not applicable. During the January 2020 VA thoracolumbar spine examination, the Veteran reported functional loss described as aching, low back pain, trouble with bending, stooping, heavy lifting, prolonged sitting and standing. Initial range of motion testing revealed flexion at 75 degrees, extension at 20 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 215 degrees. The range of motion contributed to functional loss manifested as limited bending and twisting. There was pain with weight-bearing and pain on motion caused functional loss. The examiner noted no localized tenderness or pain on palpation. The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use. Any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use. The examination was not conducted during a flare-up but the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Any pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner could not describe in terms of range of motion because the Veteran did not report flare-ups. The examiner noted additional factors contributing to the Veteran's lumbar spine were interference with sitting and standing. There was no guarding, muscle spasms, muscle atrophy, radiculopathy, ankylosis, other pertinent physical findings, other neurological abnormalities, or intervertebral disc syndrome. The Veteran did not use assistive devices. Passive range of motion testing was not conducted because it was not feasible to do so in a safe and reasonable manner. Non-weight bearing testing was not applicable. VA treatment records do not show any complaints or contemporaneous reports pertaining to the Veteran's cervical or lumbar spine degenerative disc disease. A preponderance of the evidence is against the assignment of an initial rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran's cervical spine degenerative disc disease under DC 5242-5237. Cervical spine degenerative disc disease range of motion, at worst, was flexion at 45 degrees, extension at 45 degrees, right lateral flexion at 45 degrees, right lateral rotation at 80 degrees, left lateral rotation at 80 degrees, and a combined range of motion at 340 degrees without muscle spasms or guarding. Additionally, the competent evidence does not show cervical spine ankylosis or the functional equivalent of ankylosis. Therefore, a higher initial rating is not warranted, and the claim is denied. A preponderance of the evidence is against the assignment of an initial rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran's lumbar spine degenerative disc disease under DC 5242-5237. Lumbar spine degenerative disc disease range of motion, at worst, was flexion at 75 degrees, extension at 20 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 215 degrees without muscle spasms or guarding. Additionally, the competent evidence does not show lumbar spine ankylosis or the functional equivalent of ankylosis. Therefore, a higher initial rating is not warranted, and the claim is denied. The Board has also considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher ratings also include a claim for a total disability rating based on individual unemployability (TDIU) when the Veteran claims he is unable to work due to a service-connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show that his disability acting alone or in conjunction with his other service-connected disabilities prevents gainful employment. Although the January 2020 VA examiner indicated that the Veteran's lumbar spine degenerative disc "makes lifting, bending, and stooping at work to handle boxes difficult at times," other VA examinations reflect otherwise and VA treatment records reflect that the Veteran is employed and does not show complaints or contemporaneous as to his service-connected disabilities impacting his ability to work. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.