Citation Nr: 21077048 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-29 743 DATE: December 28, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for a neck disability from September 24, 2012, is granted. FINDING OF FACT From September 24, 2012, the preponderance of the evidence shows that the neck disability is manifested by forward flexion of the cervical spine to less than 15 degrees but not ankylosis even when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for a neck disability from September 24, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had over 20 years of active service with the United States Air Force (USAF) between October 1972 and February 2002 as well as another five plus years of service with a Reserve Component. In February 2019, the Veteran had a hearing before the undersigned. A transcript has been associated with the record. In June 2019 the Board of Veterans' Appeal (Board), among other things, Remanded the claim for a higher evaluation for a neck disability. In a June 2020 rating decision, the regional office (RO) granted the Veteran's neck disability, rated at 20 percent disabling from September 24, 2012, a 30 percent rating from February 26, 2020. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In December 2020 the Board in substance, among other things, denied a rating in excess of 20 percent from September 24, 2012, and 30 percent from February 26, 2020, for the neck disability. As to the claim for a higher evaluation for the neck disability, the Veteran appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the December 2020 Board decision to the extent that it denied the claim for higher evaluations for the neck disability. As to the concerns raised in the JMPR the Board notes, and as discussed in more detail below, the current adjudication includes consideration of all the evidence of record since the Veteran filed his claim on September 24, 2012, including the results from the February 2020 VA examination. Therefore, no further action is required at this time to address the JMPR's concerns. Lastly, the Board finds that notwithstanding the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) the record does not raise a claim for a total rating based on individual unemployability (TDIU) because it shows that the Veteran is still employed. See, e.g., February 2019 hearing transcript; February 2020 examination. The Increased Rating Claim The Veteran claims, in substance, that he is entitled to a higher rating for his neck disability at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's neck disability is rated as 20 percent disabling from September 24, 2012, and 30 percent disabling from February 26, 2020, under 38 C.F.R. § 4.71a, Diagnostic Code 5243. i. The Amended Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, as of February 7, 2021, the only amendment pertinent to the current appeal is to Diagnostic Code 5243 in which it was amended to add the notation that it should apply only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Therefore, the Board finds that the amendment does not change how this Veteran's neck disability is rated. Accordingly, the Board finds that a Remand to provide the Veteran with notice of the new rating criteria and have the claim adjudicating applying it is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ii. Correia and Sharp Compliance Next, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his neck disability the Board has not overlooked the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the February 2020 examination provided VA with medical opinion evidence adequate to rate the Veteran's neck disability when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination is not required. See Sabonis, supra. iii. The Rating Criteria The General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, if the combined range of motion of the cervical spine is not greater than 170 degrees, 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 if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine; a 40 percent rating if there is unfavorable ankylosis of the entire cervical spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal neck motion is flexion to 45 degrees, extension to 45 degrees, right and left lateral flexion to 45 degrees, and right and left rotation to 80 degrees. 38 C.F.R. § 4.71a, Plate V. The Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. iv. The Merits of the Neck Claim As to a rating in excess of 20 percent for the neck disability from September 24, 2012, and as talked about in the JMPR, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra) and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record is the February 2020 VA examination. See Owens, supra; Tatum, supra; Young, supra. Tellingly, the Board find's that this evidence shows that the neck's adverse symptomatology approximates the criteria for at least a 30 percent rating at all times during the pendency of the appeal because it shows, among other things, forward flexion of the cervical spine is 10 degrees (i.e., 15 degrees or less). See 38 C.F.R. § 4.71a. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran meets the criteria for a 30 percent rating for his neck disability at all times from September 24, 2012. See Fenderson, supra. However, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for a higher, 40 percent, rating under the General Rating Formula for Disease and Injuries of the Spine due to adverse symptomatology that equates to ankylosis. See Owens, supra. The Board has reached this conclusion because the record, including the May 2016 and February 2020 VA examinations, is uniform in documenting at least some neck motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. In fact, the May 2016 and February 2020 VA examiners specifically opined that the neck was not ankylosed, and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected neck disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis at all times from September 24, 2012. Hart, supra; Fenderson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 30 percent for his neck disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal. The Board has reached this conclusion because the most probative evidence of record shows that the neck disability does not cause at least a total of 4 weeks of incapacitating episodes during any 12-month period during the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In fact, the February 2020 VA examiner opined that the Veteran's neck disability did not cause any incapacitating episodes and this opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds service treatment records are negative for evidence of 4 or more weeks of incapacitating episodes during any 12-month period during the appeal and the Veteran as a lay person is not competent to provide this medical finding because he does not have the required training. See Davidson, supra; Colvin, supra. Consequently, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's neck disability at any time from September 24, 2012, due to incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In reaching all the above conclusions the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim to the extent outlined above, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.