Citation Nr: 21074830 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-05 582 DATE: December 16, 2021 ORDER Entitlement to a 30 percent disability rating for degenerative arthritis of the cervical spine from May 20, 2020, is granted. Entitlement to a compensable rating for tension headaches is denied. FINDINGS OF FACT 1. The evidence is at least in relative equipoise for a finding that the Veteran's cervical spine disability was manifested by forward flexion of the cervical spine 15 degrees or less from May 20, 2020. 2. There is no probative evidence of record that the Veteran experienced characteristic prostrating headache attacks at any time during the rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent staged rating, but no higher, for degenerative arthritis of the cervical spine, from May 20, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to increased initial ratings for migraine headaches, rated as noncompensable, are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.4, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to June 1990, March 2007 to September 2008 and May 2013 to January 2014. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2015 and February 2015 Department of Veterans Affairs (VA) Regional Office (RO) decisions denying an increased rating for a service-connected cervical spine disability and a compensable rating for service-connected migraine disability. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). Where there is a question as to which of 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. 38 C.F.R. § 4.7 (2018). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2018). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2018). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Cervical spine In June 2014 the Veteran submitted a claim that his service-connected cervical spine disability had worsened. The Veteran's neck condition is currently rated as 10 percent disabling under DC 5242. Cervical spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Over the period on appeal, the Veteran has been provided with two examinations pertaining to his neck condition. At no time during the entire period on appeal, has the Veteran been found to have IVDS with incapacitating episodes, been prescribed bed rest to treat his neck condition, or reported any incapacitating episodes pertaining to his neck condition. As such, the Veteran's neck disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine is 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 evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. A review of the record over the entire period on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. The Veteran underwent VA examinations pertaining to his neck condition in August 2014 and December 2019, and neither examiner found the Veteran to have ankylosis of the spine. In addition, the Veteran's VA treatment records do not reflect that he has ever been diagnosed with ankylosis of the spine. At its worst, with consideration of both flare-ups and repetitive motion over time, ROM findings by the VA examiner from the August 2014 VA examination reflected forward flexion of the cervical spine from 0 to 45 degrees. ROM findings from the December 2019 VA examination showed forward flexion from 0 to 35 degrees. The examiner did not find there to be any additional loss to ROM after repetitive use testing, or due to repeated use over time, or during a flare-up. The Veteran submitted a private medical opinion from May 2020. In this examination, the Veteran reported Veteran reports experiencing flare ups that result in bilateral upper extremity weakness, restricted ROM, daily pain and numbness. The Veteran's initial cervical spine ROM was measured as forward flexion to 30 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. No additional ROM loss due to repetitive use was noted. Pain was noted in weight bearing and non-weight bearing as well as on active, passive and repetitive use testing. Pain, weakness, fatigability and incoordination limited the Veteran's cervical spine ROM, measured as forward flexion to 10 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to15 degrees and left lateral rotation to 15 degrees. No ankylosis of the spine was found. Based upon the foregoing, a rating of 30 percent for the Veteran's neck condition is warranted. The Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. However, the evidence is at least in relative equipoise between the Veteran's private May 2020 examination and the Veteran's VA examinations that the Veteran experiences at its worst, forward flexion was from 0 to 10 degrees, and therefore is limited to 15 degrees or less. As such, a rating of 30 percent for the Veteran's neck condition is warranted. Accordingly, a rating of 30 percent for a neck condition is granted from May 20, 2020. 2. Migraines The Veteran seeks increased initial ratings for headaches. His migraines are rated as noncompensable. The applicable rating period is from January 5, 2014, the date for the award of service connection for headaches, through the present. See 38 C.F.R. § 3.400 (2018). The Veteran's headaches are rated under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, migraines, a noncompensable rating is assigned for headaches with less frequent attacks. A 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum schedular 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating." By way of reference, the Board notes that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." Turning to the relevant evidence of record, when examined by VA in August 2014, the Veteran reported having headaches approximately 4 times per 10 days for which he did not take any medication. The headaches were described as a sharp pain initially in the frontal lobe. He experienced sensitivity to light and sound. She denied photophobia, sound intolerance or aura. The examiner found that the headaches were not prostrating. Additional VA examination was conducted in December 2019. At that the time, the Veteran reported experiencing headaches constantly. He was not on any medication. He experienced sensitivity to light and sound, nausea and vomiting. The examiner found that the headaches were not prostrating. The examiner diagnosed tension headaches with no functional limitations. In view of the relevant evidence of record, the Board concludes that the Veteran was not entitled to a compensable initial rating for headaches. As noted above, no prostrating attacks as a result of migraines were indicated on either VA examination. See 38 C.F.R. § 8100 (2018). There simply is no probative evidence of record that the Veteran experienced prostrating headache attacks at any time during the rating period. The Board has considered the Veteran's assertions that he is entitled to higher initial ratings for the service-connected headaches. He is competent to report symptoms such as headache pain, nausea, and sensitivity to light and sound. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in that regard and in his belief that he is entitled to increased initial ratings for headaches. However, the record does not contain any evidence that the Veteran experienced prostrating headaches. Thus, the Board concludes that the probative evidence of record supports a finding that a compensable initial rating is not warranted for headaches at any time. The Board, therefore, finds that the criteria for increased initial ratings for the Veteran's headaches have not been met at any time during the rating period. As the preponderance of the evidence is against the assignment of increased initial ratings, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.