Citation Nr: 21074480 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-09 663 DATE: December 15, 2021 ORDER For the period prior to October 13, 2021, entitlement to an initial disability rating in excess of 10 percent for a cervical spine disability, with cervical spondylosis at the C4-5 and C5-6, is denied. As of October 13, 2021, entitlement to an initial disability rating in excess of 20 percent for a cervical spine disability, with cervical spondylosis at the C4-5 and C5-6, is denied. Prior to October 13, 2021, entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability, with spondylosis of T7 with compression and degenerative changes in the lower lumbar facets, is denied. As of October 13, 2021, entitlement to an initial disability rating in excess of 40 percent for a lumbar spine disability, with spondylosis of T7 with compression and degenerative changes in the lower lumbar facets, is denied. FINDINGS OF FACT 1. For the period prior to October 13, 2021, the Veteran's neck disability did not manifest as forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, a 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. As of October 13, 2021, the Veteran's cervical spine disability manifested as forward flexion after repetitive motion and during flareups was limited to 30 degrees. 3. Prior to October 13, 2021, the Veteran's thoracolumbar spine disability did not manifest as forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the spine is not limited to 120 degrees; or there is muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 4. As of October 13, 2021, the forward flexion of the Veteran's spine was limited to 30 degrees. 5. At no point during the course of appeal did the Veteran have ankylosis in any portion of his spine CONCLUSIONS OF LAW 1. For the period prior to October 13, 2021, the criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2021). 2. As of October 13, 2021, the criteria for a disability rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2021). 3. Prior to October 13, 2021, the criteria for a disability rating in excess of 10 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2021). 4. As of October 13, 2021, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from February 1976 to January 1982. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) October 2018 rating decision of the Agency of Original Jurisdiction (AOJ). In a May 2020 decision, the Board issued a decision denying the above claims. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2021, the Court, pursuant to a Joint Motion for Remand (JMR), remanded the case back to the Board for action consistent with the JMR. Specifically, the Court noted that the September 2019 VA examinations that the Board relied upon for their May 2020 denials were inadequate for adjudicative purposes. In May 2021 the Board, pursuant to the JMR, remanded the Veteran's claims for additional development. Specifically, the Board was to obtain VA examinations that specifically addressed the effect of the Veteran's pain on his range of motion of his spine, as well as the effects (if any) of any flareups he may or may not experience. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the May 2021 Board remand, and as discussed further below, the AOJ has conducted additional development as directed, and there has been substantial compliance with the remand directives. In an October 2021 rating decision, the AOJ granted a staged, higher rating of 40 percent for the lumbar spine disability, effective October 13, 2021, and a higher rating of 20 percent for the cervical spine disability, effective October 13, 2021. The decision also granted service connection for left and left upper and lower extremity radiculopathy. 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that in addressing the nature of any flare ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's cervical and thoracolumbar spine disabilities are rated under DC 5242, which relates to degenerative arthritis of the spine. Disability ratings of the spine are assigned pursuant to the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes and the General Rating Formula Diseases and Injuries of the Spine. 38 C.F.R. $ 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, General Rating Formula Diseases and Injuries of the Spine. Nevertheless, the Formula for Rating IVDS Based on Incapacitating Episodes is not raised by the record, because the record is silent for a diagnosis of or treatment for incapacitating episodes due to IVDS; and, therefore, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an adequate basis for an increased disability rating. 38 C.F.R. $ 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, for a thoracolumbar spine disability a rating of 20 percent is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the spine is not limited to 120 degrees; or there is muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and a disability rating of 40 percent is assigned when the Veteran manifests a flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire cervical spine. A disability rating of 50 percent is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a total disability rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is not raised by the record, because the record is silent for a diagnosis of or treatment for ankylosis; and, therefore, the assignment of a disability rating of 50 percent or a total disability rating is precluded. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For cervical spine disabilities, a 10 percent rating applies where there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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. A 20 percent rating applies where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, a 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating applies where there is forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating applies where there is unfavorable ankylosis of the entire cervical spine and a 100 percent rating applies where there is unfavorable ankylosis of the entire spine. However, as discussed further below, there is no diagnosis of ankylosis in the Veteran's cervical spine. Therefore, any rating in excess of 30 percent is, by definition, excluded as a possibility. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, regarding the Veteran's diagnosed condition (degenerative arthritis of the spine, codified as diagnostic code 5242) there has been no change to the rating criteria. As discussed below, the Veteran has not been diagnosed with IVDS, nor has he been prescribed bed rest by a physician. Therefore, the updated portions of DC 5243 are not applicable to his claims. In his March 2020 VA Form 9 the Veteran attempts to advance the argument that while he has not had prescribed bed rest, the amount of time he claims to have missed at work "add[s] up to more than two weeks during a year." However, VA regulations clearly state that to warrant a compensable rating, any bed rest for a spinal disability (specifically IVDS) must be prescribed by a medical professional. While the Board is sympathetic to the Veteran's claims, the amount of time he may or may not have missed due to his spinal disabilities, on their own, have no bearing on the disability ratings he has been assigned. 1. For the period prior to October 13, 2021, entitlement to a disability rating in excess of 10 percent for a cervical spine disability 2. As of October 13, 2021, entitlement to a disability rating in excess of 20 percent for a cervical spine disability The Veteran claims that his cervical spine disability warrants higher disability ratings. The Veteran's lay evidence and treatment records indicate that the Veteran manifested back symptomology throughout the period on appeal. The Veteran was seen for a VA examination back in May 2011. The examiner found that the Veteran's forward flexion was limited to 55 degrees, his extension limited to 35 degrees, his left- and right lateral flexion both limited to 40 degrees, and his left- and right rotation was limited to 85 degrees. The examiner noted that the Veteran did not report any pain, and there was no evidence of fatigue, weakness, or incoordination with repetitive use testing. There was no evidence of ankylosis. In an August 2019 statement, the Veteran's wife stated that the Veteran had been living with pain in his neck area and constantly had to move his neck around to avoid stiffness. The Veteran was next seen for a VA examination in September 2019. The Board notes that the Court has determined the findings of the September 2019 examination are "inadequate," and are not suitable "for rating purposes." As such, further discussion of the results of the September 2019 VA examination is not warranted. In a March 2020 VA Form 9, the Veteran stated that his arthritis of the neck caused him extreme pain, stiffness, swelling and headaches for years. He stated that the chronic pain caused im to not be able to perform normal asks for days. A June 2021 private CT report indicates that the cervical spine had mild canal and foraminal stenosis at several levels and moderate foramen stenosis at C5-6. On October 13, 2021, pursuant to the Board's September 2021 remand directives, the Veteran was seen for another VA examination to determine the severity of his cervical spine disability. At this time, the Veteran's condition had been diagnosed as cervical spondylosis at the C4-5 and C5-6 vertebrae. The Veteran reported experiencing flareups multiple times a month, which result in pain and decreased range of motion (ROM) that "makes the Veteran's neck feel very stiff." The Veteran's forward flexion endpoint (where pain began) was recorded at 30 degrees (out of 45). His extension endpoint was 30 degrees, and his left- and right lateral flexion endpoints were each at 20 degrees. The Veteran's left and right lateral rotation endpoints were at 50 degrees and 40 degrees, respectively. Pain was noted on forward flexion and extension. While passive ROM testing was medically contraindicated, there was evidence of pain on active motion. There was no additional loss of ROM after repetitive motion testing or during flareups. The Board notes that the Veteran's flareups caused additional pain and fatigability. The examiner found no evidence of localized tenderness, guarding, or muscle spasms, no IVDS, and as has been mentioned, no evidence of ankylosis. Regarding the functional impact of the Veteran's cervical spine disability, the examiner noted that the Veteran lost around "1-2 weeks work time" in the last 12 months, and that his "neck pain limits his ROM and prevents him from being able to drive at time[sic]." Upon review of the evidence, the Board finds that prior to October 13, 2021, the evidence shows that the Veteran's cervical spine disability does not warrant a disability rating in excess of 10 percent. This is because there is no objective evidence that the ROM of his cervical spine was limited such that his forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, a 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The only competent, credible, and in the words of the Court, "adequate," medical evidence on record shows that prior to October 13, 2021 the Veteran's forward flexion was limited to 55 degrees, and that the combined ROM of his cervical spine was measured to be 340 degrees. As noted above, there has been no evidence that the Veteran's cervical spine disability caused muscle spasms or guarding. Although the Veteran reported having pain in his neck, the evidence is against a finding that the Veteran's cervical spine disability caused functional impairment due to pain equivalent to forward flexion of 30 degrees or less or, combined range of motion of the cervical spine of 170 degrees or less, or but not greater than 335 degrees; or, muscle spasm severe enough to result in an abnormal gait or abnormal spina contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, the Board finds that prior to October 13, 2021, the severity of the Veteran's cervical spine disability warrants a 10 percent disability rating, and no more. However, the evidence shows that as of October 13, 2021, the Veteran's cervical spine disability warrants a 20 percent rating, as his forward flexion after repetitive motion and during flareups was limited to 30 degrees. A higher, 30 percent rating, is not warranted as the Veteran's forward flexion was not limited to less than 15 degrees, and there is no evidence of ankylosis of any portion of his spine. The Veteran did not report any functional loss or functional impairment at the October 2021 VA examination report. Regarding neurological impairment, the Veteran has already been granted service connection for left and right lower and upper extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. Although the Veteran reported having headaches in the March 2020 VA Form 9, the October 2021 VA examination report found the Veteran did not have any other neurologic abnormalities or findings. In sum, the Board finds that prior to October 13, 2021, the Veteran's cervical spine disability, with cervical spondylosis at the C4-5 and C5-6, warrants a 10 percent disability rating, and a 20 percent disability rating from that date forward. In reaching this decision, the Board acknowledges that the VA examiners (with the exception of the September 2021 VA examiner) have observed the Veteran to have pain throughout the range of motion on repetition and to report flare-ups that caused increased pain and limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a; DeLuca, 8 Vet. App. at 204-07. This is evidenced by the fact that the October 13, 2021 examiner specifically noted that the Veteran experienced pain on multiple planes of movement, and documented the point at which pain occurred as well as the functional impact of his pain. 3. Prior to October 13, 2021, entitlement to a disability rating in excess of 10 percent for a thoracolumbar spine disability 4. As of October 13, 2021, entitlement to a disability rating in excess of 40 percent for a thoracolumbar spine disability The Veteran claims that his thoracolumbar spine disability warrants increased disability ratings. The Veteran's lay evidence and treatment records indicate that the Veteran manifested back symptomology throughout the period on appeal. The Veteran was seen for a VA examination in May 2011. The examiner found that the Veteran's forward flexion was limited to 85 degrees, his extension limited to 30 degrees, and there was no limitation for his left- or right lateral bending and/or lateral rotation. According to the examiner, "there was no pain," and fatigue, weakness, and/or incoordination was not found with repetitive motion "in any plane [of movement]." In a February 2014 statement, a coworker and supervisor of the Veteran stated that he had observed the Veteran reporting pain causing great discomfort, difficulty walking, and pain too severe to drive himself home. The coworker stated that it was evidence the Veteran had constant pain in his back on a daily basis. In an August 2019 statement, the Veteran's wife stated that the Veteran had been living with pain in his back area. She stated the back pain had ben affecting his everyday life. He woke up every morning with his back hurting and had difficulty falling asleep. The Veteran was next seen for a VA examination in September 2019. The Board notes that the Court has determined the findings of the September 2019 examination are "inadequate," and are not suitable "for rating purposes." As such, further discussion of the results of the September 2019 VA examination is not warranted. A January 2020 x-ray of the Veteran's spine showed an "unremarkable" lumbar spine. On October 13, 2021, pursuant to the Board's September 2021 remand, the Veteran was seen for another VA examination to determine the severity of his thoracolumbar spine disability. The examiner noted that, at the time, the Veteran was diagnosed with spondylosis of the T7 vertebrae with compression and "degenerative changes in the lower lumbar facets." Due to this, the Veteran reported "back pain and stiffness" that has worsened over time, with flareups that occur almost weekly that cause "increased pain." The Veteran's forward flexion was limited to 40 degrees, while his extension was limited to 25 degrees. His left- and right lateral flexion were both limited to 20 degrees, while his left- and right lateral rotation were both limited to 15 degrees. Pain was noted on forward flexion and on left- and right lateral rotation. Passive ROM testing was not done as it was medically contraindicated. The examiner noted there was evidence of pain on active motion as well as on rest/non-movement. Repetitive motion testing showed a further limitation in his ROM, as his forward flexion was limited to 30 degrees, his extension to 20, his left lateral flexion to 20 degrees, his right lateral flexion to 15, his left lateral rotation limited to 25 degrees, and his right lateral rotation was limited to 15 degrees. As noted above, the Veteran experiences regular flareups of his thoracolumbar spine disability. During flareups, the Veteran's forward flexion is limited to 30 degrees, is extension to 20, his left lateral flexion limited to 20 degrees, his right lateral flexion to 15, and his left- and right lateral rotation are each limited to 15 degrees. During flareups the Veteran experiences additional pain and fatigability. There was no evidence of muscle guarding or spasms, nor where there any additional factors contributing to the Veteran's disability. Muscle strength and reflex testing results were normal, and a straight leg raising test was negative. As noted above, there is no evidence of ankylosis of the Veteran's spine, nor has he been prescribed bed rest by a physician to treat his back pain. Based on the above, the Board finds that the competent, probative, and "adequate" medical evidence shows that prior to October 13, 2021, the Veteran's thoracolumbar spinal disability does not warrant a disability rating in excess of 10 percent. At no point prior to October 13, 2021, was the Veteran's forward flexion of his spine limited to more than 30 degrees but less than 60 degrees, nor was his combined ROM of the thoracolumbar spine less than (or equal to) 120 degrees. Furthermore, there was no evidence of muscle guarding or spasms. The evidence also did not show that the Veteran's back pain caused functional impairment equivalent to forward flexion limited to 30 degrees or less, or a combined range of motion of the thoracolumbar spine of less than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spina contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As of October 13, 2021, the Board finds that a disability rating in excess of 40 percent is not warranted. At that time, the Veteran's forward flexion of the thoracolumbar spine was limited to 30 degrees by his pain as well as his flareups. However, as the Veteran has not been determined to have ankylosis of any kind in his spine, he does not meet the requirements for a 50 percent disability rating (unfavorable ankylosis of the thoracolumbar spine) or a 100 percent disability rating (unfavorable ankylosis of the entire spine). Regarding neurological impairment, the Veteran has already been granted service connection for left and right lower and upper extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his thoracolumbar spine disability. In sum, the Board finds that prior to October 13, 2021, the Veteran's thoracolumbar spine disability, with spondylosis of T7 with compression and degenerative changes in the lower lumbar facets, warrants a 10 percent disability rating, and a 40 percent rating from that date forward. In reaching this decision, the Board acknowledges that the VA examiners (with the exception of the September 2021 VA examiner) have observed the Veteran to have pain throughout the range of motion on repetition and to report flare-ups that caused increased pain and limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a; DeLuca, 8 Vet. App. at 204-07. This is evidenced by the fact that the October 13, 2021 examiner specifically noted that the Veteran experienced pain on multiple planes of movement, and documented the point at which pain occurred as well as the functional impact of his pain. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.