Citation Nr: A21020033 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200518-180452 DATE: December 15, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative arthritis (cervical spine disability) is denied. Entitlement to an effective date earlier than August 29, 2011 for the grant of service connection for depressive disorder is denied. Entitlement to an effective date earlier than August 29, 2011 for the grant of service connection for cervical spine disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for depressive disorder is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disability was manifest by, at most, forward flexion limited to 40 degrees. The combined range of motion of the cervical spine was not greater than 170 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The evidence reflects that the Veteran submitted claims for service connection for cervical spine disability and depressive disorder on August 29, 2011. There is no earlier claim, formal or informal, in the evidence of record or evidence from which such a claim can be inferred. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for an effective date prior to August 29, 2011, for the grant of service connection for the Veteran's cervical spine disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to August 29, 2011, for the grant of service connection for the Veteran's depressive disorder have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes before the Board of Veterans' Appeals (Board) from a February 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which inter alia, restored service connection for depressive disorder and granted service connection for cervical spine disability and assigned a 10 percent disability rating, effective August 29, 2011. In a May 2020 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the February 2020 rating decision to the Board and requested direct review of the evidence considered by the RO. As the Veteran has elected direct review under the AMA, the Board will only consider the evidence of record as of the date of the February 2020 rating decision. 38 C.F.R. § 20.202(b)(1). 1. Increased rating for cervical spine disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contended that he is entitled to a higher rating for his service-connected cervical spine disability. The Veteran's cervical spine disability is evaluated at 10 percent under Diagnostic Code (DC) 5237, which evaluates disabilities according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, DC 5235-5243. Under the General Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or for a combined range of motion greater than 170 degrees but not greater that 335 degrees. It may also be assigned for any muscle spasm, guarding or localized tenderness that does not result in an abnormal gait or abnormal spinal contour, or for a vertebral body fracture with the loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion is not greater than 170 degrees. It can also be assigned if there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is warranted when there is forward flexion of the cervical spine that is 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the cervical spine, the thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The General Formula applies for rating purposes with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Formula, Note (1). For the purposes of rating disabilities of the cervical spine, normal forward flexion, extension, and left and right lateral flexion of the cervical spine are zero to 45 degrees. Left and right lateral rotation are zero to 80 degrees. Thus, the normal combined range of motion for the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, General Formula, Note (2). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion; and, as such, a body part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is considered an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints in question are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but it may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the relevant evidence of record, the August 2013 VA examination report noted a cervical spine degenerative disc disease (DDD) diagnosis in July 2011. The Veteran complained of neck pain over the years, including daily neck stiffness, with pain rated as 2/10 on a 1-10 pain scale. He endorsed flare-ups that were manifested by increased pain that were precipitated by driving for longer than an hour. Range of motion testing revealed forward flexion to 45 degrees or greater; extension to 45 degrees or greater; lateral flexion to 45 degrees or greater, bilaterally; right lateral rotation to 75 degrees; and left lateral rotation to 70 degrees. There was no objective evidence of painful motion. There was no additional limitation in range in motion following repetitive- use testing nor any functional loss/functional impairment of the cervical spine. The Veteran did not have any localized tenderness or pain to palpation, nor any guarding or muscle spasms of the cervical spine. Muscle strength testing was normal and there was no muscle atrophy. The Veteran did not have any radicular pain or other symptoms due to radiculopathy; no other neurological symptoms were reported. The Veteran had Intervertebral Disc Syndrome (IVDS), but did not have any incapacitating episodes due to his IVDS. Regarding functional impact, the examiner stated that the Veteran's cervical spine condition did not impact his ability to work. The December 2019 VA examination report notes a diagnosis for degenerative arthritis cervical spine, which began in 1980. The Veteran reported "1/10 daily neck pain and will go to 5/10 with sleeping wrong usually 3-4 times a month. Complains of stiffness on daily basis. No radicular complaints." The Veteran reported flare-ups of the cervical spine and that his condition causes functional loss, stating that he cannot lift 50 pounds. Initial range of motion testing revealed forward flexion to 40 degrees; extension to 35 degrees; right lateral flexion to 45 degrees; left lateral flexion to 30 degrees; right lateral rotation to 70 degrees; and left lateral rotation to 50 degrees. There was localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine in the TTP left lower neck/trapezius area. There was no additional limitation in range in motion following repetitive- use testing. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have any guarding or muscle spasms of the cervical spine. Muscle strength testing was normal and there was no muscle atrophy. The Veteran did not have any radicular pain or other symptoms due to radiculopathy; there was no ankylosis and no other neurological symptoms were reported. The Veteran did not have IVDS of the cervical spine. Regarding functional impact, the examiner stated that the Veteran's cervical spine condition did not impact his ability to work. Upon review of the evidence, the Board finds that the criteria for an initial rating in excess of 10 percent for cervical spine disability is not met. Forward flexion of the Veteran's cervical spine was not limited to 30 degrees or less. In addition, the combined range of motion of his cervical spine was not limited to 170 degrees or less. Moreover, the August 2013 and December 2019 VA examinations do not evidence that his cervical spine area cause any abnormal gait or abnormal spinal contour; there was also no evidence of ankylosis. Notably, the Veteran's pain on motion of his cervical spine disability did not produce disability comparable to any of the General Formula criteria for a rating higher than 10 percent. In addition, although the August 2013 VA examiner noted the Veteran's diagnosed IVDS of the cervical spine, he indicated that the Veteran did not have episodes of acute signs and symptoms due to his IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Therefore, there is no basis for an initial rating higher than 10 percent under the Incapacitating Episodes Formula. The disability picture did not meet or approximate the criteria for a rating higher than 10 percent. As a result, the Board denies an initial rating higher than 10 percent for his cervical spine disability. 2. Entitlement to an earlier effective date The Veteran's depressive disorder and cervical spine disability are each rated as 10 percent disabling, from August 29, 2011. See, e.g., November 2021 rating decision-codesheet. 38 U.S.C. § 5110(a) provides that, unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot "be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). If a previously denied claim is later reopened and granted based on the submission of new and material evidence, the effective date of benefits will ordinarily be the date that the claimant filed the application to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2). Generally, "absent a showing of clear and unmistakable error, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date." Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (o)(1). For increased rating claims, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b) (2), now section 5110(b)(3), requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim... to receive the benefit of an earlier effective date"). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 19.23-19.24). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the law and regulations in effect prior to March 24, 2015 will be applied in this case. Under the prior, applicable, regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). By way of history, the Veteran filed service connection claims for a cervical condition and depression in an August 2011 Application for Compensation (VA Form 21-526EZ). In an August 2013 rating decision, the RO granted the Veteran's depressive disorder claim, but denied his cervical spine disability claim. Subsequently, in an August 2015 rating decision, the RO severed service connection for the Veteran's depressive disorder, effective November 1. 2015 due to no diagnosis related to military service. In February 2020, the RO restored service connection for depressive disorder, effective November 1, 2015 (the date the service connection award was severed) based on a May 2019 Board decision. In addition, the RO granted service connection for cervical spine disability, effective August 29, 2011, the date the VA received his claim. As noted above, the Veteran submitted formal claims for service connection, which was received by VA on August 29, 2011(although they were ultimately denied and severed in August 2013 and August 2015 rating decisions). Regarding cervical spine disability, the Veteran did not appeal the denial, and new and material evidence was not received within one year of the August 2013 decision and it therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. However, in a February 2020 decision, service connection for cervical spine disability was granted, evaluated as 10 percent disabling effective August 29, 2011. Regarding depressive disorder, the RO ultimately restored service connection in the February 2020 rating decision. The Veteran has not argued, and the evidence of record does not suggest, that a formal or informal claim for service connection was submitted for either disability prior to August 29, 2011. In addition, the Veteran has not alleged clear and unmistakable error in the prior rating decision. Therefore, considering the above-cited legal authority, the Board finds that an effective date earlier than August 29, 2011 for either the Veteran's service-connected depressive disorder or cervical spine disability is not warranted. Based on the foregoing, the August 29, 2011 date is the proper effective date for the award of service connection for both his depressive disorder and cervical spine disability, thus the Veteran's appeal for an earlier effective date for those claims must be denied. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (q)(2). As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a). VA treatment records dated in April 2019 indicate that the Veteran feels alone and lacks purposes. VA treatments records dated in December 2019 note that the Veteran has mild to moderate depression, with "increased isolation, lack of desire to complete tasks, lack of desire to do anything outside the home" and he "continues to feel alone and sad most of the time." As noted above, the RO severed service connection for depressive disorder based on a September 2013 VA medical opinion that found that the Veteran did not have a diagnosis for depressive disorder, but instead had a personality disorder diagnosis. The RO also relied November 2013 and December 2013 VA medical opinions that found that the Veteran's personality disorder "clearly and unmistakably pre-existed service and was not aggravated beyond its natural progression by military service." However, as noted in the May 2019 Board decision, the severance of the Veteran's service connection was improper given the Veteran's current diagnosis of depressive disorder. Since the above was a pre-decisional duty to assist error, a remand of the Veteran's increased rating claim for a depressive disorder is warranted. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802(a). Regarding TDIU, the Veteran indicated that he last worked in July 2009 and that he can no longer work due to his service-connected conditions and is thus entitled to a TDIU. See VA Form 21-8940; VA Form 10182. As this contention is tantamount to a derivative claim of entitlement to a TDIU, this additional claim is being added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Since a decision on the remanded increased rating claim could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Thus, the Board will remand the issue of entitlement to a TDIU as inextricably intertwined with the increased rating claim being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Given the pre-decisional duty to assist errors in not affording the Veteran adequate VA examination on his depressive disorder claim, these errors had the effect of preventing a fully informed decision on the issue of entitlement to a TDIU and warrants remand of this issue either as a pre-decisional duty to assist error or correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802 (a). A medical opinion should be obtained indicating the functional impairment caused by his service-connected disabilities to include as to the ability to perform occupational tasks. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected depressive disorder in accordance with the current disability benefits questionnaire. The records, including this REMAND, must be made available to, and be reviewed by, the examiner and the examination report should note that review. 2. After undertaking any appropriate development, adjudicate the issue of entitlement to a TDIU. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, Associate 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.