Citation Nr: 21072929 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-22 550A DATE: December 6, 2021 ORDER December 6, 2021 An initial rating in excess of 10 percent for degenerative arthritis of the cervical spine with invertebral disc syndrome (neck disability) prior to July 28, 2009 is denied. A 20 percent rating for a neck disability beginning July 28, 2009, is granted. A disability rating in excess of 20 percent for a neck disability is denied. An initial rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine (back disability) from March 1, 2008 is denied. FINDINGS OF FACT 1. Prior to July 28, 2009, the Veteran's neck disability was manifested by painful motion. 2. On July 28, 2009, an x-ray showed straightening of the normal lordotic curve of the Veteran's cervical spine. 3. During the appeal period, her neck disability was not manifested by forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 4. On and after March 1, 2008, the Veteran's back disability was not manifested by forward flexion of greater than 30 degrees but no greater than 60 degrees, a combined range of motion of the thoracolumbar spine that is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or reports of incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a neck disability prior to July 28, 2009 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for an 20 percent rating for a neck disability have been met beginning July 28, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 3. The criteria for a disability rating in excess of 20 percent for a neck 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 5242-5243. 4. The criteria for an initial rating in excess of 10 percent for a back disability on or after March 1, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from September 1986 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, the RO granted service connection for the Veteran's neck and back disabilities, assigning evaluations of 0 percent, effective March 1, 2008. In March 2017, the ratings were increased to 10 percent, effective March 1, 2008. In April 2019, the Board denied the Veteran's claims and she appealed these denials to the U.S. Court of Appeal for Veterans Claims (Court). In February 2020, the Court issued a Joint Motion for Partial Remand (JMPR) to vacate the denial and remanded the matters to the Board for further development. The parties agreed that the February 2017 VA examinations of the Veteran's neck and back were inadequate. In October 2020, the Board remanded the claim to obtain additional VA examinations. In March 2021, new VA examinations of the cervical and lumbar spine were conducted. At the examinations, the Veteran described her flare-ups and the examiner described her flare-ups in terms of range of motion. Passive range of motion was also tested, and the examiner discussed pain with weight bearing and without weight bearing. The examinations complied with the October 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The examinations are adequate because they were based upon the Veteran's lay assertions and current symptoms, and because they described her neck and back disabilities in detail sufficient to allow the Board to make a fully informed determination. In an April 2021 rating decision, the RO increased the Veteran's rating for her neck disability to 20 percent, effective March 31, 2021. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The instant appeal stems from March 1, 2008, the date service connection was awarded for the Veteran's degenerative disc disease of the cervical and lumbar spine disabilities. Therefore, this is an initial rating claim. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. As of February 7, 2021, under the amended criteria, the DC 5242 was revised to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome," and DC 5243 which covers IVDS was revised to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. In this case, since the record shows diagnoses of cervical spine arthritis, IVDS, and evidence of spine nerve root compression/irritation, the claim is properly evaluated under both DC 5242 and DC 5243. The underlying rating criteria were not changed by the amendment. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is 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 evaluation is warranted when the forward flexion of the cervical spine is 15 degrees or less; or, there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Degenerative arthritis may also be rated under Diagnostic Code 5003. Under Diagnostic Code 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. The Veteran's limitation of motion in her neck and back is being compensated under the General Rating Formula for Diseases and Injuries of the Spine, and therefore a higher rating under Diagnostic Code 5003 is not warranted. 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."). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome warrants a 10 percent evaluation when the veteran has incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 20 percent evaluation is warranted when the veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of assigning evaluations under Code 5243, an "incapacitating episode" is 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There is no medical or lay evidence of record indicating the Veteran has ever had an incapacitating episode as defined by regulation. Therefore, the Formula for Rating Intervertebral Disc Syndrome is not more favorable. 1. Neck disability. The question before the Board is whether the evidence in record shows that the Veteran's cervical spine condition was severe enough to warrant an initial rating higher than 10 percent prior to March 31, 2021, and higher than 20 percent on and after March 31, 2021. For the reasons discussed below, a 20 percent rating for the neck disability is granted, beginning July 28, 2009, and a rating in excess of 20 percent is denied. Period prior to July 28, 2009 An August 2008 MRI of the cervical spine showed worsening multilevel cervical spondylosis most significant at C3/4 associated with a new large left posterior disc protrusion causing narrowing of the left nerve root exit zone and left neural foramen. No other medical records discuss her neck disability, including range of motion measurements. A 10 percent rating is appropriate for noncompensable but painful motion of the cervical spine. 38 C.F.R. §§ 4.59, 4.71. Period beginning July 28, 2009 The July 28, 2009 VA general medical examination and x-rays show diagnoses of cervical DJD and IVDS. She reported neck pain and stiffness, and denied having flare-ups. The examination and spine function measurements show full cervical spine range of motion with no pain, muscle spasm, guarding, or ankylosis. An x-ray of the cervical spine taken on July 28, 2009 stated that there was "straightening of the normal lordotic curvature of the cervical spine." A September 2009 letter from Dr. T. O., a chiropractor, describes x-ray findings from July 2009, which shows degeneration progressing in the cervical spine, 129 percent loss of curve (0 percent is normal), bone spurs at levels C5/7, and decreased disc space at levels C4/7. The chiropractor also notes a cervical flexion study shows ligament instability at levels C2/3 and C4/5. The 20 percent criteria contemplate abnormal spinal contour "such as" reversed lordosis. 38 C.F.R. § 4.71a. Because the criteria state "such as," it is not an exhaustive list of types of abnormal spinal curvatures. A 20 percent rating is granted effective July 28, 2009, the date that the evidence showed an abnormal spinal contour. However, a rating greater than 20 percent is denied because the higher criteria have not been met during the appeal period. In her September 2010 Notice of Disagreement, the Veteran complained of constant pain, neck bone spurs and arthritis, low back arthritis, and very painful "knots" in her neck, back, and shoulders. During a February 2015 internal medicine clinic visit, she reported chronic neck pain. She had full range of motion of the neck, but with tenderness to palpation. She had normal strength and gait. A March 2015 letter from a neurosurgeon, Dr. D.W., confirms the diagnosis of cervical degenerative disc disease and neural narrowing and recommends an ergonomic desk to relieve stress to her cervical spine. Treatment records from this clinic note the Veteran's reports of constant pain, usually on the right side of the neck, sometimes pain on the left side. Private treatment records from February 2015 through June 2015 show he Veteran's reports of chronic neck pain with range of motion. However, her gait and muscle strength were normal. On February 5, 2017, the Veteran underwent a VA examination for her neck. In the JMPR, the parties agreed that this examination was inadequate because it did not properly address flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Because the parties agreed that the portion of the examination addressing flare-ups was inadequate, it will not be afforded any probative weight. However, the portions of the examination addressing symptoms other than limitation of motion were not found inadequate and may be considered. At the February 2017 examination, she described her symptoms as ongoing and increasing neck pain that was almost constant. She stated that she had difficulty keeping her head and neck in a flexed position. Her strength was normal at 5/5. She did not have muscle atrophy. She had IVDS but it did not require bed rest prescribed by a physician. She did not use an assistive device. The March 2021 VA examination of the cervical spine shows diagnoses of cervical spine degenerative arthritis and IVDS. The Veteran reported her symptoms have worsened since the onset of her condition and include "knots" and stiffness in the neck and top of the shoulders, especially in the morning. She said she has pain with neck movement, flareups once a month, lasting a few days, and her pain increases from 2/10 to 8/10 during flareups. She stated that during flare-ups, she had difficulty moving her head to the left. Her forward flexion was to 35 degrees; extension to 45 degrees; right lateral flexion to 45 degrees; left lateral flexion to 45 degrees; right lateral rotation to 50 degrees; and left lateral rotation to 40 degrees, all with pain. There was no degree endpoint that was specifically attributable to pain that was different from active range of motion measurements. Passive range of motion was tested and the examiner specifically stated that it was the same as active range of motion. Passive range of motion was painful, and there as pain during weight bearing and non weightbearing. She had mild tenderness over her left paraspinals. There was no change after repetitive motion testing. Although she was not being examined immediately after repeated use over time, the examiner sated that there would not be additional functional limitation after repeated use over time. The examiner found that during a flare-up, her flexion would be 25 degrees, extension would be 35 degrees, right lateral flexion would be 45 degrees, left lateral flexion would be 35 degrees, right lateral rotation would be 50 degrees, and left lateral rotation would be 30 degrees. She did not have muscle spasm or guarding, and her gait was normal. The examiner noted that facet and uncovertebral joint arthrosis has progressed since the previous study, now with moderate to severe neuroforaminal stenosis, bilaterally, at multiple levels of the spine. The examination report shows that, at worst, the Veteran's forward flexion of her cervical spine would be 25 degrees, which is expressly contemplated by the 20 percent criteria. The Board acknowledges the Veteran's lay reports of symptoms of neck stiffness and pain, as they are consistent with the medical records. However, even considering her lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements regarding "flareups" once a month or so where neck pain increases on a scale from 2/10 to 8/10 would not result in limitation of motion more nearly approximating forward flexion of 15 degrees. The Veteran retains mobility in her cervical spine and therefore does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is immobility of the joint in a fixed position). "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). She does not have the functional equivalent of ankylosis. Even during a flare-up, she would retain the ability to move her neck in flexion, extension, lateral rotation, and lateral flexion. Normal range of motion of the cervical spine is 45 degrees each of forward flexion, extension, and lateral flexion bilaterally; and 80 degrees of rotation bilaterally. 38 C.F.R. § 4.71a at Plate V. During a flare-up she would retain approximately half of her flexion, approximately three quarters of her extension and left lateral flexion, have normal right lateral flexion, approximately 63 percent of right lateral rotation, and 37 percent of left lateral rotation. This retained motion, even during a flare-up, cannot be accurately described as the functional equivalent of not being able to move the neck. Thus, a rating in excess of 20 percent on or after July 28, 2009 for cervical spine disability is not warranted. 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. The question before the Board is whether the evidence in record shows that the Veteran's lumbar spine condition was severe enough to warrant an initial rating higher than 10 percent at any time during the pendency of the appeal. Under Diagnostic Code 5242-5237, RO issued an initial rating of 10 percent from March 1, 2008. Turning to the record, the July 2009 VA examination of the lumbar spine shows a diagnosis of IVDS. No flareups were reported and no assistive device was needed for walking. Her gait was normal. The same September 2009 letter from Dr. T. O. discussed above also notes that the Veteran had lost 77 percent loss of curve in the lumbar spine. Unlike her neck, where an abnormal spinal contour was visible on imaging, an October 2011 MRI of the lumbar spine specifically showed that "[t]he visualized cord is normal in contour and caliber." The Board finds the MRI report to be more probative than Dr. T. O.'s statement because Dr. T. O. did not explain how he determined the loss of curve, and the spinal contour was specifically found to be normal when imaged. Dr. T. O.'s statement is less probative than the MRI study and therefore it does not support a 20 percent rating. The February 2017 VA examination report was deemed inadequate by the parties to the JMR with regard to range of motion testing and discussion of flare ups. Therefore that portion of the opinion will not be given any probative weight. However, the portions of the examination addressing symptoms other than limitation of motion were not found inadequate and may be considered. At the examination, the Veteran reported low back pain that is nearly constant but varied between a 2/10 and a 10/10 depending on whether she exercises. She had difficulty bending and twisting her back and lifting heavy objects. She did not have guarding or muscle spasm. She had mild localized tenderness that did not cause an abnormal gait or abnormal spinal contour. Her strength was normal. She did not have muscle atrophy. The March 2021 VA examination shows diagnoses of degenerative lumbar disc disease at levels L5/S1, and IVDS. The Veteran reports discomfort with prolonged sitting, standing, and use of a standing desk to help alleviate pain. Her pain sensation was "tightness". She had muscle spasm. Her low back pain was constant. She also reported "mild" pain flareups every other month, lasting 4 days. Initial range of motion was normal but with pain in all aspects. The examiner did not find that there was a degree endpoint that was different from the initial measurements that was specifically attributable to pain. Passive range of motion was tested and the examiner specifically found it to be the same as active range of motion. She had pain on weight bearing, active motion, passive motion, and rest but it does not result in functional loss. She was able to perform use testing with at least 3 repetitions and there was no change. The examiner found that during flareups her forward flexion was to 80 degrees, and extension, bilateral lateral flexion and bilateral lateral rotation were all 20 degrees. She had localized tenderness not resulting in abnormal gait or spinal contour; pain over right PSIS; no muscle spasms or guarding. Her strength was normal and she had no atrophy. She used assistive devices (SI belt and braces). The examiner noted worsening symptoms indicate that IVDS has likely progressed. At worst, the Veteran's forward flexion of the lumbar spine would be 80 degrees during a flare-up, and her combined range of motion would be 180 degrees during a flare-up. The 20 percent criteria require forward flexion greater than 30 degrees but not greater than 60 degrees, or a combine range of motion not greater than 120 degrees. She did not have an abnormal gait. As noted above, even though Dr. T. O. stated she had abnormal lumbar spinal curvature, an MRI study specifically showed that her spinal contour was normal. The preponderance of the evidence shows that she does not have an abnormal lumbar spine contour. Even when considering pain and functional loss, the criteria for the higher rating must still be met. Thus, a rating in excess of 10 percent for lumbar spine disability is not warranted at any time during the pendency of the appeal. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.