Citation Nr: 21005671 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-61 336 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative joint disease/degenerative disc disease, status post anterior cervical discectomy C6-C7 with cervical fusion C4-C7 (cervical spine disability) is denied. FINDING OF FACT The Veteran’s cervical spine disability manifested by painful motion with forward flexion greater than 15 degrees; ankylosis was not present. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for service-connected cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to February 1996, to include service in the Republic of Vietnam. He was awarded multiple Legions of Merit and Bronze Star Medals among other decorations. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing with the undersigned Veterans Law Judge. The case was remanded in January 2020 and has since been returned to the Board for appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran contends that he is entitled to a higher rating for his cervical spine disability. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). The Veteran’s cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for IVDS. Ratings under the Spinal Formula are made 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. As relevant to the cervical spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. The Veteran underwent VA examinations in April 2013 and October 2020. During his October 2019 hearing, the Veteran testified that he cannot turn his head as far back as he could before. The preponderance of the evidence is against a rating in excess of 20 percent for cervical spine disability based on incapacitating episodes under the IVDS Formula. Notably, the Veteran has been awarded a separate rating for right upper extremity radiculopathy, evaluated as 40 percent disabling from January 25, 2013 to October 8, 2019, and 50 percent disabling thereafter. The rating assigned for right upper extremity radiculopathy was not appealed and is not before the Board. Separate ratings for IVDS under Diagnostic Code 5243 and the radiculopathy would result in impermissible pyramiding as it would require evaluation of the same disability under various diagnoses. 38 C.F.R. § 4.14. When considering the radiculopathy rating would have to be discontinued to rate under Diagnostic Code 5243, that diagnostic code would not result in a higher rating absent evidence of at least 6 weeks of incapacitating episodes in a 12 month period. 38 C.F.R. §§ 4.25, 4.71a, IVDS Formula. Both VA examiners indicated the Veteran did not have incapacitating episodes of IVDS. The remainder of the evidence does not establish prescribed bed rest by a physician for a duration of at least 6 weeks during a year for IVDS. Thus, a higher rating is not warranted when considering the IVDS Formula. The preponderance of the evidence is also against a rating in excess of 20 percent for the cervical spine disability under the Spinal Formula. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and that such resulted in decreased range of motion (ROM). However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. In April 2013, the Veteran reported for a VA examination for the cervical spine. He denied flare-ups of the disability but did report constant daily pain. Range of motion was tested and revealed forward flexion to 30 degrees, to include after repetitive use testing. In October 2020, the Veteran reported for another VA examination for the cervical spine. During examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran denied flare-ups of the disability, but, regarding functional loss or impairment, reported difficulty rotating his neck while driving. Examination revealed no ankylosis. Range of motion testing revealed 20 degrees of forward flexion, to include after repetitive use testing. The examiner indicated that pain, weakness, fatigability and incoordination would not significantly limit functional ability with repeated use over a period of time. Put another way, the examiner estimated that repetitive use over time would not further reduce forward flexion range of motion. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. VA treatment records do not show greater limitation of motion than the examination findings. Given that forward flexion of the cervical spine is greater than 15 degrees, a higher rating is not warranted based on limitation of motion. The Board recognizes the Veteran had spinal fusion from C4 to C7; however, a higher rating requires favorable ankylosis of the entire cervical spine. As the entire cervical spine is not fixed in position, as demonstrated by examination findings, a higher rating based on ankylosis is not warranted. As noted above, the Veteran is already separately rated for right upper extremity radiculopathy. The evidence does not reveal any other associated objective neurologic abnormalities requiring separate ratings. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for 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. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.