Citation Nr: 21075472 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-25 110A DATE: December 20, 2021 ORDER The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected cervical spine degenerative disc disease, prior to July 30, 2015, is granted. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected cervical spine degenerative disc disease, since July 30, 2015, is denied. FINDINGS OF FACT 1. For the period prior to July 30, 2015, the Veteran's cervical spine disability was manifested by pain and flexion limited to 33 degrees; there was no evidence of ankylosis. 2. For the period since July 30, 2015, the Veteran's cervical spine disability was manifested by pain and flexion limited to 30 degrees; there was no evidence of ankylosis. CONCLUSIONS OF LAW 1. For the period prior to July 30, 2015, the criteria for an initial 20 percent evaluation, but no higher, for cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). 2. For the period since July 30, 2015, the criteria for an initial evaluation in excess of 20 percent for cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from November 1965 to November 1969. His service was under honorable conditions. Among other commendations, the Veteran was awarded the Vietnam Service Medal. The Veteran passed away in July 2017. His surviving spouse is the appellant. The matters are on appeal from a February 2013 rating decision. In a March 2016 rating decision, the RO increased the evaluation for the service-connected cervical spine disability from 10 to 20 percent disabling, effective from July 30, 2015. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. In July 2018, the Board in pertinent part, denied the claim of entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the cervical spine, prior to July 30, 2015. The appellant appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in July 2019, the appellant's representative and a representative of VA's General Counsel filed a joint motion for partial remand. In August 2019, the Court granted the parties' motion, vacated the Board's July 2018 decision denying an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine prior to July 30, 2015, and remanded the matter for action consistent with the terms of the joint motion. The matter was previously before the Board in April 2021. The claim has been returned to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Legal Criteria Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). 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 (2020). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and subsequent 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). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify regarding the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2020). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2020). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2020). In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected cervical spine degenerative disc disease prior to July 30, 2015. See argument Below at 2 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected cervical spine degenerative disc disease since July 30, 2015. The Veteran contends that his service-connected cervical spine disability is more severe than the currently assigned 10 percent rating prior to July 30, 2015, and 20 percent rating from July 30, 2015. The Veteran's cervical spine disability is rated under Diagnostic Code 5242 for degenerative arthritis of the spine, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Rating Formula, a 10 percent rating 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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. Id. A 30 percent rating is warranted 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 warranted for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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 zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motions 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. 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 (IVDS) will be evaluated under the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note 1. Private treatment records dated in March 2011 note the Veteran's report of neck pain. A VA outpatient x-ray report dated in September 2011 demonstrates a finding of degenerative joint disease of the cervical spine. An April 2012 private record notes the physician's opinion, that the Veteran experienced about a 20 percent (12 degrees) restricted range of motion on forward flexion; thus, forward flexion limited to 33 degrees. The physician further noted that the Veteran's overall functional ability has progressively worsened over the past ten years. The Veteran underwent a VA examination in January 2013, during which the Veteran reported flare-ups that caused decreased ability to turn his neck from side-to side. Range of motion of the cervical spine revealed forward flexion to 45 degrees or greater without pain, extension to 35 degrees with objective evidence of painful motion at 30 degrees; right lateral flexion to 25 degrees with evidence of painful motion beginning at 20 degrees, left lateral flexion to 30 degrees with painful motion beginning at 25 degrees, right lateral rotation to 55 degrees with objective evidence of painful motion beginning at 45 degrees, left lateral rotation to 55 degrees with objective evidence of painful motion beginning at 45 degrees. The Veteran was able to perform repetitive use testing with three repetitions, to include forward flexion to 45 degrees, extension to 35 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 55 degrees, and left lateral rotation to 55 degrees. The examiner indicated the Veteran had additional limitation of range of motion following repetitive-use testing. The examiner noted the Veteran demonstrated functional loss in the form of pain on movement. There was no localized tenderness or pain to palpation of the cervical spine. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing was normal. Sensory examination was normal. There was no radiculopathy or other neurologic abnormalities. There was no intervertebral disc syndrome. The examiner diagnosed degenerative joint disease of the cervical spine. A January 2013 private X-ray report reflects that the Veteran had degenerative change throughout the cervical spine with degenerative disc disease of C4-5 and C5-6. A June 2014 private treatment record notes the Veteran has sought treatment for his cervical spine for several years. The Veteran underwent a VA examination in July 2015, during which the Veteran reported worsened and restricted range of motion of his neck over the past two years. The Veteran denied flare-ups. Range of motion of the cervical spine revealed forward flexion to 30 degrees with objective evidence of pain, extension to 20 degrees with objective evidence pain; right lateral flexion to 20 degrees with objective evidence of pain, left lateral flexion to 10 degrees with objective evidence of pain, right lateral rotation to 35 degrees with objective evidence of pain, left lateral rotation to 20 degrees with objective evidence of pain. Range of motion contributed to functional loss; specifically, the Veteran demonstrated limited rotation of his neck that resulted in difficulty turning his head and looking backwards. The Veteran was able to perform repetitive use testing with three repetitions, to include forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 20 degrees. The examiner indicated the Veteran had additional limitation of range of motion following repetitive-use testing. The Veteran had functional impairment in the form of pain on movement. With repeated use over time, pain caused functional loss, to include forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 20 degrees. There was objective evidence of localized tenderness or pain to palpation of the cervical spine in the form of paraspinal muscle tenderness around the posterior lower neck. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing was normal. Reflex examination was normal. Sensory examination was normal. There was no evidence of ankylosis. There was no radiculopathy or other neurologic abnormalities. There was no intervertebral disc syndrome. X-rays show multilevel degenerative changes of the cervical spine, cervical lordosis, and minimal anterolisthesis present at C3 and C4. The examiner noted that the Veteran's cervical spine disability impacted his ability to work, to include difficulty with activities that require rotation of the neck. The Veteran underwent a VA examination in November 2016, during which he reported flare-ups that resulted in extreme stiffness and decreased range of motion of his neck. Range of motion of the cervical spine revealed forward flexion to 45 degrees, extension to 35 degrees; right lateral flexion to 35 degrees, left lateral flexion to 35 degrees with objective evidence of pain, right lateral rotation to 75 degrees with objective evidence of pain, and left lateral rotation to 75 degrees. Range of motion did not contribute to functional loss. Range on motion testing of left lateral flexion and right lateral rotation revealed objective evidence of pain that did not cause functional loss. The Veteran was able to perform repetitive use testing with three repetitions without any additional loss of function or range of motion. The examiner noted that the examination was not performed during a flare-up. There was no objective evidence of localized tenderness or pain to palpation of the cervical spine. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing was normal. Reflex examination was normal. Sensory examination was normal. There was no evidence of ankylosis. There was no radiculopathy or other neurologic abnormalities. There was no intervertebral disc syndrome. The diagnosis was cervical spine degenerative arthritis. In an October 2019 statement, G.M., the Veteran's co-worker of 30 years indicated that when they traveled, he noticed the Veteran experienced difficulty turning his head from side-to-side. He further noted that if was almost impossible for the Veteran to bend and pick up items from the ground. In an October 2019 statement, J.F., the Veteran's rabbi and lifelong friend reported that when he spent time with the Veteran, he frequently noticed the Veteran's inability to turn his neck. J.F. indicated that he asked the Veteran about this when he noticed that when he approached the Veteran from the left side, the Veteran had to turn his body, as he was unable to turn his head. J.F. also reported that the Veteran experienced difficulty driving, which resulted in potentially dangerous situations, as the Veteran could not turn his head from side-too-side. In a December 2019 statement, L.T., reported that she knew the Veteran since high school in 1961, prior to his military service. L.T. reported that she noticed that the Veteran was unable to turn his head since his return from active service. She further reported that when she spoke to him, he had to move his entire body, in order to see from side-to-side. In a January 2020 decision, the Board remanded this claim to obtain a retrospective VA opinion per the parties' July 2019 JMPR. Specifically, the Board directed a VA opinion be obtained regarding the degree of additional functional loss the Veteran experienced during flare-ups of his degenerative joint and disc disease of the cervical spine prior to July 30, 2015. In January 2021 and February 2021 VA opinions, a VA examiner opined as to the degrees of additional functional loss the Veteran experienced during flare-ups of his cervical spine disability prior to July 30, 2015; however, the examiner based his opinions solely on the range of motion findings demonstrated during the November 2016 VA examination of the cervical spine. The examiner did not discuss the January 2013 or July 2015 VA examination, which indicate ROMs that differ from the November 2016 findings. The examiner also did not explain or otherwise clarify that the opinion rendered was specific to the severity of the Veteran's condition for the time requested, that is, for the time period prior to July 30, 2015. In a June 2021 VA opinion, a VA examiner reviewed the record and found an indication that prior to July 30, 2015, the Veteran's cervical spine disability limited his capacity to perform physically demanding duties, to include heavy lifting, reaching, pushing, pulling, running, and walking. In a September 2021 VA opinion, a VA examiner reviewed the record and found that the medical evidence of record was insufficient to provide an assessment of the additional functional loss the Veteran experienced during flare-ups of his cervical spine disability, prior to July 30, 2015. In providing the opinion, the examiner noted the report of a December 2015 VA lumbar spine examination indicated range of motion findings for the Veteran's lumbar spine, not his cervical spine. The examiner further noted a decrease in range of motion of the cervical spine between the January 2013 VA cervical spine examination and the July 2015 VA cervical spine examination. The examiner concluded that it would be speculative to discuss any functional loss the Veteran experienced during flare-ups of his cervical spine prior to July 30, 2015. Upon review of the record, the Board finds that the preponderance of the evidence supports an initial 20 percent rating, but no higher, for the appeal period prior to July 30, 2015, the Veteran's service-connected cervical spine disability. The evidence demonstrates the Veteran's forward flexion has been limited to no less than 33 degrees. See April 2012 private evaluation. However, this finding does not consider loss of range of motion of the Veteran's cervical spine during a flare-up. In this regard, the January 2013 VA examination report notes that the Veteran experienced decreased range of motion during flare-ups; however, the examiner did not indicate the specific degrees of loss. Throughout the period prior to July 30, 2015, the Veteran consistently reported flare-ups that involved decreased range of motion, as he was unable to turn his neck from side-to side. In addition to the Veteran's assertions, as detailed above, his family, friends, and Rabbi, also noted that they knew the Veteran since discharge from service and noticed that he could not turn his head from side-to-side, which required him to turn his entire body when he spoke to the, further limiting his ability to drive a vehicle, or perform any activity that required him to turn his neck to the right or left. Moreover, in a June 2021 VA opinion, a VA examiner reviewed the record and found that prior to July 30, 2015, the Veteran's cervical spine disability limited his capacity to perform physically demanding duties, to include heavy lifting, reaching, pushing, pulling, running, and walking. Thus, the Board finds that the evidence of record demonstrates additional functional impairment upon flare-ups. 38 C.F.R. §§ 4.71a, 4.40, 4.45, 4.59; see Mitchell, 25 Vet. App. at 32; Deluca, 8 Vet. App. at 202. Throughout the period on appeal, the Veteran's cervical spine disability does not warrant an initial rating in excess of 20 percent. In this regard, the evidence demonstrates the Veteran's forward flexion has been limited to no less than 30 degrees with consideration of pain. The evidence does not show that Veteran has ever experienced forward flexion of the cervical spine that was limited to less than 15 degrees; thus, a 30 percent rating is not warranted. Further, there is no evidence of record of additional limitation of range of motion or functional impairment upon repetitive motion testing. 38 C.F.R. §§ 4.71a, 4.40, 4.45, 4.59; see Mitchell, 25 Vet. App. at 32; Deluca, 8 Vet. App. at 202. In addition, there is no evidence of ankylosis, such that a 30, 40, or 100 percent evaluation would be warranted. Additionally, the Veteran denied incapacitating episodes and he was not diagnosed with IVDS. Finally, the Veteran does not report, nor does the evidence demonstrate, any neurological manifestations associated with the service-connected cervical spine disability. Further, the Board has considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. In this regard, the Board acknowledges the Veteran's consistent report of pain, and difficulty turning his neck from side-to-side. However, even affording the lay statements full competence and credibility, the evidence simply does not show entitlement to a higher evaluation under any applicable diagnostic code. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 20 percent disability evaluation. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, an initial 20 percent rating, but no higher, is warranted for the service-connected cervical spine disability prior to July 30, 2015, and in excess of 20 percent, is not warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.