Citation Nr: 21077640 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-02 688 DATE: December 30, 2021 ORDER Prior to September 18, 2017, entitlement to an initial rating in excess of 10 percent for service-connected cervical spine disability is denied. From September 18, 2017, entitlement to an initial rating in excess of 40 percent for service-connected cervical spine disability is denied. REMANDED Entitlement to service connection for dizziness, to include as secondary to service-connected cervical spine disability, is remanded. FINDINGS OF FACT 1. Prior to September 18, 2017, the Veteran's cervical spine disability had forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; and has exhibited no evidence of unfavorable ankylosis of the entire cervical spine. 2. From September 18, 2017, the Veteran's cervical spine disability had evidence of unfavorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. Prior to September 18, 2017, the criteria for an initial rating in excess of 10 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 2. From September 18, 2017, the criteria for an initial rating in excess of 40 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1967 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, in September 2018, the Board remanded the issue on appeal and the issue of entitlement to service connection for shin splints of the bilateral legs and entitlement to an earlier effective date for the grant of service connection for a cervical spine disability. During the appeal process, in January 2019, the RO increased the Veteran's rating for cervical spine disability from 10 percent to 30 percent, effective October 10, 2018. Then, in June 2020, the RO granted service connection for bilateral knee disability (claimed as bilateral leg disability with shin splints). Accordingly, that claim is no longer before the Board. In November 2020, the Board denied the claim for an earlier effective date for the grant of service connection for a cervical spine disability and remanded the issue of entitlement to an increased rating for his service-connected cervical spine disability. During the appeal process, in an August 2021 rating decision, the RO granted an increase from 30 percent to 40 percent for his cervical spine disability effective September 18, 2017. The matter has returned to the Board for readjudication. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Effective February 7, 2021, Diagnostic Code 5237 was unchanged whereas Diagnostic Code 5242 was changed to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010). The General Formula was unchanged from the revised version. Under the General Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; a 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. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. For VA compensation purposes, 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); see also Plate V. 1. Prior to September 18, 2017, entitlement to an initial rating in excess of 10 percent for service-connected cervical spine disability is denied. 2. From September 18, 2017, entitlement to an initial rating in excess of 40 percent for service-connected cervical spine disability is denied. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, his cervical spine disability is consistent with no higher than a 10 percent rating prior to September 18, 2017 and 40 percent thereafter. A review of the records shows that in a March 2012 VA treatment record, he was able to forward flex to 32 degrees, extend to 41 degrees, left rotate to 71 degrees, right rotate to 65 degrees, left side bend to 31 degrees, and right side bend to 31 degrees with a combined range of motion of 271 degrees. See May 2020 CAPRI. In a September 2013 VA treatment record, he was able to forward flex to 100 degrees, extend to 25 degrees, left rotate to 25 degrees, right rotate to 50 degrees, left side bend to 50 degrees, and right side bend to 50 degrees with a combined range of motion of 300 degrees. See September 2017 CAPRI. In a September 18, 2017 VA treatment record, it was noted that his upper neck was mildly fixated. See October 2017 CAPRI. A review of the records shows that the Veteran was afforded VA examinations in October 2018, October 2019, and May 2021 with an addendum medical opinion in August 2021. In the October 2018 VA examination, he complained of bilateral intermittent pain in the arms and hands. He stated that during flare ups he has throbbing, aching and sometimes sharp pain. On examination, he was able to forward flex to 10 degrees, extend to 15 degrees, right lateral flex to 5 degrees, left lateral flex to 5 degrees, right lateral rotate to 30 degrees, and left lateral rotate to 30 degrees. Pain was noted on examination. There was evidence of pain with weight bearing. He was able to perform repetitive use testing with at least three repetitions with additional loss of function or range of motion after three repetitions. Specifically, he was able to forward flex to 10 degrees, extend to 15 degrees, right lateral flex to 5 degrees, left lateral flex to 5 degrees, right lateral rotate to 25 degrees, and left lateral rotate to 10 degrees. He was not examined immediately after repetitive use over time. The examination is medically consistent with his statements describing functional loss with repetitive use over time. The examiner determined that pain and lack of endurance are the cause of his functional loss. The examination was not conducted during a flare up, however, the examiner determined that the examination is medically consistent with the Veteran's statement describing functional loss during a flare up. He exhibited guarding resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy. He exhibited normal reflexes, sensation, and muscle strength. He exhibited mild intermittent pain, paresthesias and numbness of the bilateral upper extremities. There was no evidence of an ankylosis of the spine or intervertebral disc syndrome (IVDS). There was objective evidence of pain on passive range of motion testing of the neck. There was objective evidence of pain on non-weight bearing testing of the neck. An x-ray scan of the cervical spine revealed cervical spondylosis with foraminal narrowing at C5-6 and C6-7 worse on the right. In the October 2019 VA examination, he stated that he has no free motion of his neck in any direction and must shift his entire upper body in order to look at someone or something that is to the right or the left of him. He complained of asymmetric walking, decreased left sided strength, decreased left upper extremity sensation, upper extremity paresthesias/numbness, decreased balance, and decreased coordination on his left side and neck pain that intermittently cause headaches. He stated that during a flare up, any inadvertent or intentional upward gaze or cervical extension triggers acute dizziness with vision changes and near syncopal episodes. On examination, he was able to forward flex to 15 degrees, extend to 10 degrees, right lateral flex to 18 degrees, left lateral flex to 10 degrees, right lateral rotate to 21 degrees, and left lateral rotate to 15 degrees. Pain was noted on examination. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with additional loss of function or range of motion after three repetitions. Specifically, he was able to forward flex to 10 degrees, extend to 0 degrees, right lateral flex to 15 degrees, left lateral flex to 10 degrees, right lateral rotate to 15 degrees, and left lateral rotate to 10 degrees. He was not examined immediately after repetitive use over time. The examination is medically consistent with his statements describing functional loss with repetitive use over time. The examiner determined that pain and weakness are the cause of his functional loss. In terms of range of motion, he was able to forward flex to 10 degrees, extend to 0 degrees, right lateral flex to 15 degrees, left lateral flex to 10 degrees, right lateral rotate to 15 degrees, and left lateral rotate to 10 degrees. The examination was not conducted during a flare up, however, the examiner determined that the examination is medically consistent with the Veteran's statement describing functional loss during a flare up. In terms of range of motion, he was able to forward flex to 10 degrees, extend to 0 degrees, right lateral flex to 15 degrees, left lateral flex to 10 degrees, right lateral rotate to 15 degrees, and left lateral rotate to 10 degrees. He exhibited guarding resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy. He exhibited mild intermittent pain of the left upper extremity, and mild paresthesias and numbness of the bilateral upper extremities. There was no evidence of an ankylosis of the spine or intervertebral disc syndrome (IVDS). There was objective evidence of pain on passive range of motion testing of the neck. There was objective evidence of pain on non-weight bearing testing of the neck. In November 2020, the Board remanded the issue and noted that the VA treatment records show that in September 2017 the Veteran had mildly fixated upper neck. See October 2017 CAPRI. In a February 2019, June 2019, September 2019, and January 2020 VA treatment records the Veteran was noted to have a fixated upper neck. See June 2020 Medical Treatment Record Government Facility. Based on the foregoing, the Board found that a new VA examination should be afforded to the Veteran as the treatment records may indicate favorable or unfavorable ankylosis of the cervical spine. In a May 2021 VA examination, he stated that his disability progressively worsened and has become more painful and fatigued. During a flare up, he has moderate to severe pain for about one to two hours. On examination, he was able to forward flex to 10 degrees, extend to 10 degrees, right lateral flex to 10 degrees, left lateral flex to 10 degrees, right lateral rotate to 10 degrees, and left lateral rotate to 10 degrees. Passive range of testing was not performed as it is not medically advisable to conduct passive range of motion testing. There was evidence of pain. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. He was not examined immediately after repeated use over time. Pain and weakness would cause functional loss. In terms of range of motion, he would be able to forward flex to 10 degrees, extend to 10 degrees, right lateral flex to 10 degrees, left lateral flex to 10 degrees, right lateral rotate to 10 degrees, and left lateral rotate to 10 degrees. He was not examined during a flare up. Pain and weakness would cause functional loss. In terms of range of motion, he would be able to forward flex to 0 degrees, extend to 0 degrees, right lateral flex to 0 degrees, left lateral flex to 0 degrees, right lateral rotate to 0 degrees, and left lateral rotate to 0 degrees. There would be a complete loss of function during flare ups. He had localized tenderness, guarding or muscle spasm not resulting in abnormal gait or abnormal spine contour. There was evidence of unfavorable ankylosis of the entire cervical spine. There was no evidence of IVDS of the cervical spine. Based on the records, the Board finds that prior to September 18, 2017 the Veteran's cervical spine disability is consistent with a 10 percent disabling rating. The records show that he was able to forward flex, at worst, 32 degrees; with a combined range of motion, at worst, 271 degrees. These findings are consistent with a 10 percent disabling rating. The Veteran is not entitled to the next higher rating of 20 percent disabling rating as there is no evidence of a forward flexion 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. Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown. Thus, the Board finds that the Veteran's cervical spine disability did not more nearly approximate the criteria for a rating in excess of 10 percent prior to September 18, 2017. From September 18, 2017, the Board finds that the Veteran is not warranted a higher rating of 50 percent as a 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. As such, his claim for increased rating for his cervical spine disability is denied. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5242. REASONS FOR REMAND 3. Entitlement to service connection for dizziness, to include as secondary to service-connected cervical spine disability is remanded. The Board finds that a VA examination should be afforded to the Veteran for his claim of dizziness with neck extension. A review of the treatment records shows that in a December 2011 VA treatment record it was noted that his physician was worried as the Veteran complained of dizziness with neck extension. See September 2017 CAPRI. In a March 2012 VA treatment record he again complained of dizziness and almost passing out on extension. See May 2020 CAPRI. In September 2013, he again stated that he has dizziness with cervical extension. See September 2017 CAPRI. In an August 2018, November 2018, and December 2018 VA treatment record he complained of dizziness and lightheadedness due to his cervical spine disability. See January 2019 CAPRI. Throughout the treatment record and in the VA examinations, the Veteran stated that he has dizziness, syncope, and almost passing out with neck extension. As the examiners did not address this symptom as it relates to his cervical spine disability, the Board finds that further remand is warranted to obtain a medical opinion. The matter is REMANDED for the following action: Obtain a medical opinion from an appropriate medical professional to determine if the Veteran has dizziness, syncope, and "almost passing" out due to his cervical spine disability. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. The examiner must state whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's dizziness/syncope was (a) caused by or has been (b) aggravated (worsened beyond the natural progress of the disorder) by his service-connected cervical spine disability. (Continued on the next page) The examiner should consider the treatment records. Specifically, a December 2011 VA treatment record noted that his physician was worried as the Veteran complained of dizziness with neck extension. See September 2017 CAPRI. In a March 2012 VA treatment record he again complained of dizziness and almost passing out on extension. See May 2020 CAPRI. In September 2013, he again stated that he has dizziness with cervical extension. See September 2017 CAPRI. In an August 2018, November 2018, and December 2018 VA treatment record he complained of dizziness and lightheadedness due to his cervical spine disability. See January 2019 CAPRI. If aggravation is found, identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. A detailed rationale for the opinion must be provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.