Citation Nr: 21075719 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 10-22 888A DATE: December 21, 2021 ORDER Entitlement to a rating higher than 20 percent for cervical strain with degenerative disc disease is denied. REMANDED Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the right upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter, is remanded. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the left upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter, is remanded. FINDING OF FACT The Veteran's cervical spine disability is not manifested by forward cervical flexion to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for cervical strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1991 to October 1991 and April 1996 to September 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2008 and May 2010 rating decisions. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In January 2017 and August 2017, the Board remanded these claims for additional development. In a November 2019 decision, the Board granted an initial rating of 20 percent for radiculopathy of the left upper extremity, prior to May 2013, and a rating of 40 percent, thereafter, denied entitlement to an initial increased rating for radiculopathy of the right upper extremity, and remanded the issue of entitlement to an increased rating for a cervical strain with degenerative disc disease. The Veteran subsequently appealed the November 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In October 2020, the parties agreed to a Joint Motion for Partial Remand (JMPR) that vacated and remanded the portions of the November 2019 Board decision that denied entitlement to initial higher ratings for the Veteran's radiculopathy of the right and left upper extremities. In March 2021, the Board remanded these claims for additional development. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. As recently as January 2021, the Veteran indicated he was still working. See January 2021 VA treatment note. He has not submitted any evidence of unemployability. Accordingly, the Board finds that Rice is not applicable. 1. Entitlement to a rating higher than 20 percent for cervical strain with degenerative disc disease. The Veteran seeks entitlement to an increased rating for his cervical strain with degenerative disc disease. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities. A May 2005 rating decision granted service connection for a cervical strain, rated 20 percent, effective September 21, 2004. In May 2008, a claim for an increased rating was received; however, in a September 2008 rating decision, the RO reduced the Veteran's rating to 10 percent, effective July 2008. A notice of disagreement with the reduction was received in December 2008. In a May 2010 rating decision, the 20 percent rating was restored and continued. The Veteran then completed a substantive appeal, asserting that he is entitled to a higher rating for his service-connected cervical spine disability. The Veteran's cervical spine disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted 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, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA examination in July 2008. He reported constant neck pain and stiffness. There were no incapacitating episodes over the prior 12 months. He denied flare-ups. The Veteran's flexion was to 45 degrees, extension to 15 degrees, lateral flexion to 30 degrees, and lateral rotation to 60 degrees, all with end of range pain. He was able to perform repetitive use testing with no additional loss of range of motion. He had 5/5 strength in all four extremities with normal sensation and 2+ deep tendon reflexes that were symmetric throughout. He had diffuse tenderness to palpation of the cervical spine, but no spasm and he had a normal gait. The Veteran was afforded a VA examination in January 2010. He reported daily neck pain, stiffness, and experiencing three incapacitating episodes. Flexion was to 30 degrees, extension was to 55 degrees, right and left lateral flexion were 40 degrees and right and left lateral rotation were to 45 degrees. The examiner indicated the Veteran experienced end of range pain, but his range of motion was not additionally limited following repetitive use. There was tenderness over the right paraspinal cervical musculature and the right trapezius. His gait was normal. The Veteran was afforded a VA examination in May 2013. He reported constant neck pain with flare-ups. He indicated the pain and stiffness become worse when the weather gets cold and during his job he has to look up and down a lot, which makes his pain worse. He also reported spasms. Forward flexion was to 25 degrees with pain throughout the range, extension to 10 degrees with pain throughout the range, right and left lateral flexion to 25, right lateral rotation to 80 degrees and left lateral rotation to 40 degrees, with pain throughout the range of motion. He was able to perform repetitive-use testing with no additional loss of range of motion. Muscle strength and reflexes were normal. The examiner indicated the Veteran did not have any incapacitating episodes. The examiner noted the Veteran had less movement than normal and pain on movement. The Veteran was afforded a VA examination in March 2015. All ranges of motion were normal, with pain noted that did not cause functional loss. He was able to perform repetitive-use testing with no additional loss of range of motion. The Veteran reported flare-ups every week that were mild with a duration of 10 minutes. The examiner opined that flare-ups and repetitive use would not affect range of motion. There were no muscle spasms or guarding. Muscle strength and reflexes were normal. He did not have intervertebral disc syndrome. The Veteran was afforded a VA examination in April 2015. He reported constant neck pain exacerbated by neck flexion and neck lateral rotation. Range of motion was 40 degrees of forward flexion, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 60 degrees. The examiner indicated the Veteran had decreased range of motion and associated pain that limited his capacity for weight-bearing. He was able to perform repetitive-use testing with no additional loss of range of motion. Muscle strength was normal. The examiner indicated the Veteran did not have intervertebral disc syndrome. The examiner opined that the Veteran's cervical disability negatively impacted his ability to work. The Veteran testified before the Board in August 2016. He testified that his neck is very painful, difficult to turn and that it is aggravated by daily activities. The Veteran was afforded a VA examination in February 2017. He reported daily neck pain and increased pain with periods of looking up and with range of motion during driving. Flare-ups were described as increased pain three to four times per week, lasting less than 24 hours. Range of motion was 30 degrees of forward flexion, extension to 35 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 50 degrees and left lateral rotation to 60 degrees. Pain was noted on examination, but it did not cause functional loss. There was no evidence of pain on weight bearing. He was able to perform repetitive-use testing with no additional loss of range of motion. The examiner opined that pain would significantly limit functional ability with repeated use over time and during flare-ups. He also experienced disturbance of locomotion. Muscle strength and reflexes were normal. The examiner noted that the Veteran's work as an electrician often exacerbates his neck symptoms. The Veteran was afforded a VA examination in November 2018. He reported constant neck pain and that his range of motion was severely impacted by pain. Flare-ups were reported as occurring at least two times per day with pain at a level of 10/10. The Veteran reported difficulty driving due to difficulty turning his had left, right and up. Range of motion was 45 degrees of forward flexion, extension to 20 degrees, right and left lateral flexion to 15 degrees, and right and left lateral flexion to 45 degrees, with pain on all ranges of motion except forward flexion. There was no evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. There was no ankylosis. The Veteran was noted to have intervertebral disc syndrome, but without any incapacitating episodes. He reported 0-1 week of work time lost in the prior twelve months. The Veteran was afforded a VA examination in November 2020. He reported pain, "cracking," and limited range of motion. He reported flare-ups as occurring seasonally, or every few months, lasting a few days and consisting of severe, increased pain and restricted range of motion. Range of motion was 40 degrees of forward flexion, extension to 15 degrees, right and left lateral flexion to 20 degrees, right lateral flexion to 15 degrees and left lateral flexion to 80 degrees, with pain on extension and right lateral rotation. The Veteran was able to perform repetitive use testing, resulting in 35 degrees of forward flexion, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral flexion to 10 degrees and left lateral flexion to 80 degrees. The examiner opined that pain would significantly limit functional ability during flare-ups or with repeated use over time, resulting in a range of motion of 35 degrees of flexion, 10 degrees of extension, right and left lateral flexion to 20 degrees, 10 degrees of right lateral rotation and 80 degrees of left lateral rotation. There was no evidence of pain in nonweight-bearing. There was no ankylosis. The examiner indicated the Veteran did not have intervertebral disc syndrome. It was noted that the Veteran had missed 0-1 week of work time in last 12 months. The examiner explained that the Veteran's cervical strain with degenerative disc disease and degenerative arthritis of the spine impacted the Veteran when he must do a significant amount of "look up" at work to perform certain tasks or if he must turn his neck to the right to do certain functions. The Veteran was afforded a VA examination in June 2021. He reported daily pain that is aggravated by repeatedly looking up and down. He reported flare-ups of the neck daily, of moderate severity lasting approximately 2 hours and precipitated by repeated turning. Range of motion was 30 degrees forward flexion, 30 degrees extension, 30 degrees right lateral flexion, 45 degrees left lateral flexion, and 80 degrees right and left lateral flexion, with pain at the endpoints of forward flexion, extension, and right lateral flexion. Passive range of motion was the same as active. There was pain on weight bearing, nonweight-bearing, and active motion. He was able to perform repetitive use testing with no additional loss of range of motion. The examiner opined that pain, fatigability, weakness, lack of endurance, or incoordination would not significantly limit functional ability with repeated use over time. The examiner opined that pain and fatigability would significantly limit functional ability during flare-ups, resulting with a range of motion of 30 degrees flexion, 30 degrees extension, 25 degrees of right and left lateral flexion, and 40 degrees of right and left lateral rotation. The examiner indicated the Veteran did not have intervertebral disc syndrome. The examiner stated there is a functional loss due to limitation with repeated turning head and flexing head to both directions and range of motion limitations with flareups. The Board finds that the preponderance of the evidence is against a rating higher than 20 percent. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation due to repetitive use or flare-ups would not result in limitation of motion of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Even considering pain during repetitive use or flare-ups, the Veteran's cervical spine has been limited to, at most, 25 degrees. There was no ankylosis demonstrated. The Veteran has undergone numerous examinations, and these are the factual results. The Board acknowledges the assertion that the Veteran's symptoms during a flare-up are like ankylosis, in that he has reported he must sit or lay down during a flare-up. However, even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate fixation of a spinal segment in neutral position. The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical professionals who have examined him. The overall medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board acknowledges the Veteran's complaints of pain on use. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These complaints are well documented in the lay statements submitted. However, even considering the Veteran's pain and limitation of function, there is no persuasive evidence that the Veteran's disability warrants a rating higher than 20 percent under the applicable Diagnostic Code. The Board also recognizes the limitations that the Veteran has as a result of his service-connected disability. However, these limitations, including the Veteran's pain and interference with daily activities have been considered in the rating assigned. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for cervical radiculopathy of the bilateral upper extremities; these issues are discussed in the Remand section below. The evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the right upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter. 3. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the left upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter. Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO was directed in the August 2017 and March 2021 Board remands to afford the Veteran a VA examination for his radiculopathy of the bilateral upper extremities. The Board instructed the examiner to comment on any significant changes in severity and the approximate date of the change in severity during the appeal period for the Veteran's radiculopathy. The Veteran was afforded VA examinations in November 2018 and October 2021; however, the examiners failed to offer comments on any significant changes in severity and did not discuss or offer any approximate dates for any changes in severity during the appeal period for the Veteran's radiculopathy. On remand, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum VA medical opinion for the Veteran's radiculopathy of the bilateral upper extremities. (If deemed necessary by the examiner, afford the Veteran a VA examination.) The claims folder must be provided to the examiner for review. The examiner is requested to comment on any significant changes in severity and the approximate date of the change in severity during the appeal period for the Veteran's bilateral cervical radiculopathy. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.