Citation Nr: 21006602 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-26 047 DATE: February 4, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for cervical spine arthritis is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s cervical spine arthritis has been manifested by forward flexion to 30 degrees (on flare-ups) at worst, stiffness, pain, tenderness, and limitations on heavy lifting and lifting above the shoulders; but not by forward flexion to 15 degrees or less; or, favorable ankylosis of the entire cervical spine throughout any period of the appeal. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for cervical spine arthritis have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1987 to December 1987 and from April 1989 to April 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for additional development in June 2019. As the actions specified in the remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial rating in excess of 20 percent for cervical arthritis 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. 38 C.F.R. § 4.40; see 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. The Veteran's cervical arthritis is currently-rated as 20 percent disabling under Diagnostic Code 5242, covering degenerative arthritis of the spine. 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. Under the General Formula, a 20 percent rating is assigned 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 assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71 (a). Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Throughout the period on appeal the Veteran has reported stiffness, pain, numbness with tingling in her hands, and decreased range of motion, with flare-ups resulting in increased pain and limited mobility. This Veteran is competent to report these symptoms, and as there is no evidence that the statements are not credible, they are entitled to probative weight with respect to the severity of the disability during the period on appeal. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran was provided with VA cervical spine examinations in June 2009, November 2017, and October 2020. In June 2009, the examiner noted that the Veteran had forward flexion to 55 degrees. Objective evidence of pain following repetitive testing was observed, but the examiner noted no additional limitations. No pain, tenderness, weakness, guarding, or pain with motion was present. The examiner noted no ankylosis. No flare ups were noted. The examiner noted lumbar and cervical pain, with the type of pain described as pops, catches, and stiff. The frequency of pain was noted as 1-6 days a week, and it was noted as radiating into the Veteran’s left arm and left leg, causing numbness. Pursuant to the exam, imaging of the cervical spine was obtained. Imaging revealed multilevel degenerative changes of the cervical spine with loss of cervical lordosis. In a September 2012 statement, the Veteran reported that her cervical arthritis “limits mobility when it flares up substantially.” A November 2012 VA nursing note reflects the Veteran’s reports of right-side stiff neck and right-side shoulder blade pain for the prior two weeks. In November 2017, the Veteran reported functional loss in the form of intermittent stiffness but denied spasm. The Veteran also reported pain with heavy lifting. The Veteran reported that she manages pain with rest, and heating pads as needed. On examination, the Veteran had forward flexion to 40 degrees, with no further loss of range of motion after repetitive testing. The examiner noted then current symptoms of intermittent moderate to severe non-radiating aching neck pain approximately two times a year. The examiner noted that the Veteran’s cervical condition impacts her ability to work by limiting lifting above the shoulders throughout the workday. The examiner noted that the limitation does not prevent the Veteran from participating in sedentary work duties. Pain was present on movement on right and left lateral flexion, and right and left lateral rotation testing, but there was no evidence of pain on weight-bearing. Pain that causes functional loss was noted on exam, as well as on weightbearing. Cervical paravertebral tenderness to palpation was noted to be present. The examiner noted that the examination results were neither medical consistent nor inconsistent with the Veteran's statements describing functional loss after repeated use over time. In October 2020, the Veteran reported then current symptoms of stiffness in the mornings with numbness and tingling in her hands. The Veteran further reported, “hearing something,” when she rotates her head up and down. She reported intermittent pain 2-3 days per week and had recently developed headaches. The Veteran reported then current treatment of these symptoms with tea in the morning and ice/heat pads as needed, stating that her last medical evaluation for her neck had “been a while.” The Veteran reported functional loss in the form of, “[i]t makes things a little slower for me getting started in the morning. I can’t lift weights because of my hands and I notice I am weaker in my grip.” The Veteran reported experiencing flare-ups, which the Veteran described as, “2-3 days of the week the pain is 3/10.” Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). The examiner noted that the Veteran had forward flexion to 40 degrees, extension to 35 degrees, right and left lateral flexion to 45 degrees, each, and right and left lateral rotation to 70 degrees, each. Pain was present in all planes of movement, and on weightbearing and non-weightbearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Tenderness was noted to be present and guarding of the cervical spine that did not result in abnormal gait or abnormal spinal contour. Passive range of motion testing was not conducted because it was not feasible to do so in a safe and reasonable manner. On repeated use over time, the examiner estimated forward flexion limited due to pain 35 degrees, extension to 30 degrees, right and left lateral flexion to 40 degrees and right and left lateral rotation to 65 degrees, each. While the examination was not being performed during flare-ups, the examiner estimated that due to pain and weakness, the estimated range of motion as to flexion would be to 30 degrees, extension to 25 degrees, right and left lateral flexion to 35 degrees, each, and right and left lateral rotation to 60 degrees, each. The examiner noted the functional impact of the Veteran’s disability as having missed one week or less in the prior 12 months due to her disability. The Veteran had limited bending of her neck during flare ups due to pain from her cervical spine arthritis which the examiner opined, could alter her ability to perform caregiver tasks such as dressing or performing housework. The examiner noted the Veteran’s radicular pain in the bilateral upper extremities as mild, resulting in intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted that the Veteran’s complaints are subjective only, as the claims file is silent for objective evidence, or chronicity of cervical radiculopathy. The examiner noted the Veteran’s history of Reynaud’s syndrome and right ganglion cyst which would contribute to her symptoms. The examiner noted that there was no evidence of ankylosis, and that the Veteran did not have IVDS. There is no evidence that any of the above examiners were either not competent or credible. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Outside of the November 2012 nursing note discussed above, the medical and lay evidence of record is silent for treatment for the Veteran’s cervical disability from VA or private facilities at any time during the period on appeal, and no further range of motion testing is of record. Except a period in 2012 when the Veteran suffered a right achilles tendon rupture unrelated to her cervical disability, the Veteran has been noted to have normal gait throughout the period on appeal. Based on the foregoing, an initial rating in excess of 20 percent for the Veteran's cervical spine disability is not warranted. The October 2020 VA examiner noted that the Veteran had forward flexion to 40 degrees, with further loss of range of motion to 35 degrees after repetitive testing, and to at most, 30 degrees during flare ups, due to factors such as fatigue, incoordination or pain. DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45. All of these measurements are well in excess of the degree of limitation of motion contemplated by a 30 percent rating. No additional higher or alternative ratings under different Diagnostic Codes can be applied. The Veteran has not been noted to have IVDS at any time during the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Given the lack of lay or medical evidence to the contrary, a rating in excess of 20 percent based on incapacitating episodes is not warranted. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, pursuant to the October 2020 VA examination report, service connection for the Veteran's radiculopathy of the bilateral upper extremities was been granted, and therefore is already contemplated by its assigned ratings. No other neurologic abnormalities have been noted as being associated with the Veteran's cervical disability. No other associated neurologic abnormalities are reflected in the VA examination reports or the Veteran’s treatment records. As such, additional separate compensable ratings are not warranted. Id. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board has considered whether the Veteran has demonstrated additional functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include on repetitive-use or during flare-ups, that would warrant the assignment of a higher rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. Although the Veteran has subjectively reported functional loss due to pain and painful motion, no additional loss of function or range of motion was objectively observed during any of the other examinations of record. Accordingly, the Board finds that the overall level of disability demonstrated by the Veteran throughout the period on appeal is not commensurate with assigning a higher schedular rating under the Deluca criteria. Although the Board acknowledges that the Veteran has reported pain that has resulted in functional loss, there is nothing in the record that suggests the pain resulted in functional loss beyond what is already contemplated by the Veteran’s assigned 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. The findings provided in the examination reports are adequate to decide the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 20 percent for the Veteran's service-connected cervical spine arthritis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. (Continued on the next page)   The Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, the Veteran has not contended that her service-connected disabilities prevent her from the ability to secure and follow substantially gainful employment, and nothing in the record is suggestive of such. Therefore, TDIU has not been raised by the record. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.