Citation Nr: 21072334 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 20-00 374A DATE: December 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service connected right lower extremity sciatic radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected left lower extremity sciatic radiculopathy is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's cervical spine disability most closely resembles the criteria required for a 20 percent disability rating. CONCLUSION OF LAW The criteria for establishing entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1993 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2021 it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with an examination to address the current severity of her cervical spine disability and to obtain an opinion regarding the onset, and severity at onset, of the Veteran's bilateral lower extremity radiculopathy. A relevant examination and medical opinion were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the March 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the Veteran filed a VA Form 20-0995, Supplemental Claim Application. She identified the issues for which she was requesting a supplemental claim as entitlement to an evaluation in excess of 10 percent for her bilateral lower extremity radiculopathy. The Board notes that this opt-in to the Appeals Modernization Act of 2017 (AMA) is invalid. The Board does not accept an opt-in request to an agency of original jurisdiction (AOJ) supplemental review lane without a completed application for the lane desired and either the block checked for "Opt-in," or a letter requesting withdrawal of the legacy appeal. Here, the Veteran did not check the appropriate box on the Form 20-0995 and has not submitted a request to withdraw her legacy appeal. As such, the Board retains jurisdiction over the case in the legacy appeal system. Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. Cervical SpineLegal Criteria With respect to disabilities of the cervical spine, 38 C.F.R. § 4.71a, Diagnostic Code 5242 sets forth the relevant provisions. As relevant to the cervical spine , under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 disability rating is warranted with 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 when there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is 0 to 45 degrees, and left and right lateral rotation is 0 to 80 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 is to 340 degrees. Third, 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 a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated 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 a higher evaluation. In relevant part, the Veteran's IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. The Veteran contends that she is entitled to an increased disability rating for her cervical spine condition. She is currently rated 20 percent disabling for her cervical spine disability under Diagnostic Code 5237-5242. For the reasons below, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for her service-connected condition. The Veteran was provided with a March 2011 VA Spine examination regarding her claim. During this examination the Veteran reported that she did not experience flare-ups. No IVDS or incapacitating episodes were reported. The Veteran's range of motion was recorded as follows: forward flexion to 30 degrees, extension to 35 degrees; right and left lateral bend each to 20 degrees; and right and left rotation each to 50 degrees. Combined range of motion was 205 degrees. No additional range of motion loss was found with repetitive use. Additionally, in response to the Veteran's increased rating claim, she was afforded other VA examinations, which included an August 2013 and November 2019 VA Neck Condition examinations. However, these examinations were deemed inadequate to rate the Veteran's cervical spine disability. Therefore, the Board issued a March 2021 decision which remanded the Veteran's cervical claim in order to obtain an adequate examination which adequately addressed the severity of her cervical spine disability. In response to the Board's remand, the Veteran was provided with a September 2021 VA Neck condition examination. The September 2021 examiner indicated that the Veteran's range of motion, at its worst during a flare up, was as follows: forward flexion of the cervical spine to 35 degrees, extension to 35 degrees, right and left lateral flexion both to 45 degrees, and right and left lateral rotation both to 80 degrees. The combined range of motion totaled 320 degrees. Further, the examiner noted that the Veteran experienced pain on forward flexion and extension of the cervical spine; and that the Veteran's pain begins at these range of motion measurements. The examiner indicated that the Veteran's passive range of motion was the same as her active range of motion and that she experienced pain on active range of motion, but no pain on weightbearing or non-weightbearing. No ankylosis, muscle spasms, localized tenderness, or guarding were noted. The examiner reported that the Veteran did not have IVDS. The Veteran was able to do three repetitions with no additional functional loss. The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's cervical spine. There is no evidence that the September 2021 examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords the September 2021 VA examination significant probative weight. While the September 2021 VA examiner found the Veteran's spine was not ankylosed, consideration must still be given to whether the Veteran's spine is functionally ankylosed. Cf. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran reported pain numbness, difficulty sitting and standing, difficulty doing chores, a limited social life, as well as limitation of motion. The Veteran reported that she experiences flare-ups brought on by sudden or quick movements and that the flares are alleviated with ice, heat, pain relievers, and stretching. Further, the examiner documented that while the flares limited the Veteran's range of motion, they did not cause the Veteran's neck to become immobile. The Board finds the evidence of record does not support that the Veteran's cervical spine is immobile. This is corroborated by the evidence of record including the September 2021 VA examiner's opinion. The Veteran's VA treatment records indicate that she sought treatment for her cervical spine. However, the treatment records do not contain information which differs significantly from the above noted VA examination. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that her current disability entitles her to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 20 percent for the Veteran's cervical spine disability is not warranted. The 20 percent rating contemplates the Veteran's limitation of motion of forward flexion greater than 15 degrees but not greater than 30 degrees, and pain. A rating in excess of 20 percent would require forward flexion less than 15 degrees, ankylosis of the Veteran's spine, or IVDS with incapacitating episodes having a total duration of at least 4 weeks during the last 12 months. Ankylosis of the Veteran's spine was not observed at any point during the appeal period and the Veteran's treatment records do not document any incapacitating episodes due to IVDS. The evidence of the record shows that the Veteran does not meet the requirements for a higher disability rating. For these reasons, the Board finds that a disability rating in excess of 20 percent for the Veteran's cervical spine disability is not warranted. Therefore, the claim must be denied. The evidence preponderates against an increase, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 REASONS FOR REMAND Bilateral Lower Extremity Radiculopathy The Board notes that the last VA examination which addressed the current severity of the Veteran's bilateral lower extremity sciatic radiculopathy was conducted 2 years ago in November 2019. During this examination the Veteran was reported as having mild bilateral intermittent pain, no numbness, paresthesias, dysesthesias, or constant pain was noted. However, in a recent correspondence, the Veteran reported that her pain which radiates into her lower extremities is sharp, burning, and constant. Additionally, she indicated that it is now accompanied by tingling, numbness. While the Veteran was provided with a June 2021 VA Medical opinion regarding her bilateral lower extremity radiculopathy, this opinion was retrospective in nature, and merely addressed the onset, and the severity at onset, of the Veteran's bilateral lower extremity condition, not its current severity. Given the potential worsening of the Veteran's claimed conditions, a remand is warranted for a contemporaneous examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination, by an examiner with sufficient expertise, to determine the current severity and symptomology of her bilateral lower extremity sciatic radiculopathy. The claims folder must be made available to and be reviewed by the examiner. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.