Citation Nr: 21007117 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-00 130 DATE: February 8, 2021 ORDER Entitlement to a disability evaluation in excess of 20 percent for cervical spine strain with limitation of motion and arthritis is denied. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran’s forward flexion of the cervical spine is at worse, manifested by forward flexion to 30 degrees, with no favorable ankylosis of the cervical spine. 2. The preponderance of the evidence is against finding that a back disability began during active service, that arthritis was manifest to a compensable degree within one year of service discharge, or that it is otherwise related to an in-service injury, event, or disease; 3. The preponderance of the evidence is against finding that a low back disability is proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a cervical spine strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237. 2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to January 1986. In January 2019, the Board remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for additional development. The AOJ substantially complied with the Board remand directives, and the case has since been returned to the Board for appellate review. On remand, the AOJ granted service connection for right and left radiculopathy of the lower radicular group with separately assigned 20 percent ratings, effective from February 11, 2020. The Veteran has not expressed disagreement with either the assigned ratings or the effective dates. 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 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); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The U.S. Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, 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 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. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Painful motion is entitled to a minimum 10 percent rating, per joint, even if there is no actual limitation of motion. Mitchell v. Shinseki, supra. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to a disability evaluation in excess of 20 percent for cervical spine strain with limitation of motion and arthritis The Veteran’s cervical spine strain is rated under the provisions of Diagnostic Codes (DCs) 5010-5237. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5010 instructs that traumatic arthritis is to be evaluated as degenerative arthritis under DC 5003. See 38 C.F.R. § 4.71a. Pursuant to DC 5003, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. DC 5237 requires rating under the General Rating Formula for Diseases and Injuries of the Spine ("General Rating Formula") unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome (IVDS) is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, DCs 5235-5243. While on most recent VA examination, the examiner indicated that the Veteran’s neck disability included IVDS, the record does not reflect any incapacitating episodes due to service-connected neck symptomatology as defined by regulation that would result in a higher disability evaluation under the IVDS Rating Formula. See 38 C.F.R. § 4.71a, DC 5243; see also February 2020 VA DBQ examination. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, pursuant 38 C.F.R. § 4.71a, DC 5237, a 20 percent rating is warranted when 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 there is 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 rating of 30 percent is assigned when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine is found. A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. As noted above, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, Burton, Correia, and Sharp, all supra. The Veteran contends that his service-connected cervical spine strain is more disabling than reflected by the 20 percent rating assigned. In September 2016, the Veteran underwent a VA examination. He was diagnosed with a cervical strain with limitation of motion and arthritis. He reported constant neck pain, as well as an inability to quickly turn, bend, or twist his neck. He treated his pain with prescription medications. He did not report flare-ups. Range-of-motion testing found the Veteran to have forward flexion and extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 65 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain on weight bearing. There was no evidence of pain on weight bearing or localized tenderness or pain on palpitation of the joint. There was no functional loss with repetitive testing. The Veteran did not have guarding or muscle spasm of the cervical spine. There were no additional factors contributing to his disability. Muscle strength was normal. The Veteran did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal. The Veteran did not have IVDS of the cervical spine. There was no ankylosis of the cervical spine. Also, the Veteran did not use assistive devices. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Image studies revealed arthritis of the cervical spine. The Veteran did not have a vertebral fracture with loss of 50 percent or more of height. During his June 2018 Board hearing, the Veteran noted that his cervical spine caused constant pain, pain on weight bearing, and flare-ups. He occasionally used a cane and neck brace. VA treatment records from 2019 noted chronic neck pain that was treated with ibuprofen. In February 2020, the Veteran underwent a VA DBQ examination for neck conditions. He was diagnosed with degenerative arthritis of the spine, cervical strain, and a spinal fusion. The Veteran reported worsening neck pain, as well as numbness, tingling, and burning that radiated down both arms to his hands. He did not report flare-ups. Range-of-motion testing found the Veteran to have forward flexion and extension to 40 degrees, bilateral lateral flexion to 35 degrees, and bilateral lateral rotation to 65 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain on weight bearing. There was no evidence of pain on weight bearing or localized tenderness or pain on palpitation of the joint. There was no functional loss with repetitive testing. The Veteran did not have guarding or muscle spasm of the cervical spine. There were no additional factors contributing to his disability. Muscle strength was normal. The Veteran did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal. There was no ankylosis of the cervical spine. The Veteran had IVDS of the cervical spine; however, he did not have any signs or symptoms due to IVDS that required bed rest prescribed by a physician. The Veteran occasionally used a brace and cane. Imaging studies revealed arthritis of the cervical spine. The Veteran did not have a vertebral fracture with loss of 50 percent or more of height. The Veteran reported a C1-3 cervical fusion following trauma sustained from a rooftop fall in June 2018. The Veteran had radiculopathy of the bilateral upper extremities. He had mild numbness, paresthesias and or dysesthesias, and intermittent pain bilaterally involving the C8/T1 nerve roots. The severity of the radiculopathy was mild, bilaterally. The examiner found that the Veteran’s IVDS and radiculopathy were related to his service-connected cervical spine disability. The examiner noted that IVDS and radiculopathy are common progressions of degenerative joint disease. Upon review of the evidence, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected cervical spine strain is not warranted. As noted, in order to warrant the next higher rating of 30 percent under Diagnostic Code 5237, the Veteran must demonstrate forward flexion 15 degrees or less; or, favorable ankylosis of the entire cervical spine is found. At no time during the appeal period has the Veteran had forward flexion of his cervical spine measure 15 degrees or less. Notably, the February 2020 VA examiner found that the Veteran’s flexion, extension, and bilateral lateral flexion improved since his September 2016 VA examination. Also, the Veteran did not have ankylosis. The Veteran’s claim for entitlement to a rating in excess of 20 percent for cervical spondylosis is denied because he has not shown forward flexion of the cervical spine at 15 degrees or less, and has not shown favorable ankylosis of the cervical spine. The Board further acknowledges that the Veteran experienced intermittent pain, numbness, and tingling of his bilateral upper extremities. With regard to radiculopathy, the Board notes that the Veteran’s February 2020 VA examination showed evidence of mild bilateral upper extremity radiculopathy. As noted, in this case, separate ratings are in effect for radiculopathy of the bilateral upper extremities, with an effective date of February 11, 2020, the date of the examination and the AOJ has assigned separate 20 percent ratings for each upper extremity disability. See June 2020 rating decision. The Veteran has not appealed this determination, and the medical evidence does not show that the Veteran has any objective findings of radiculopathy of the bilateral upper extremities prior to the February 2020. Notably, during the September 2016 VA examination for neck conditions, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Further, there is no competent, credible and probative evidence of any other associated neurological impairment that would warrant separate ratings. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran’s claim for a higher rating, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability is related to an injury he had during service. Also, the Veteran contends that his lumbar spine disability is secondary to his service-connected cervical spine strain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Generally, certain chronic diseases such as arthritis are presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was “noted” during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310 (a). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Although the Veteran essentially asserts that his back disability is secondary to his service-connected neck disability, the Board has also considered whether direct service connection is in order. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease; or is due to or aggravated by a service-connected disability. The Board concludes that, while the Veteran has a diagnosis of degenerative disc disease of the lumbar spine and IVDS, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, or is proximately due to or aggravated by a service-connected disability. The Veteran’s service treatment records (STRs) do not contain complaints, treatment, or a diagnosis of back pain or trauma. VA treatment records note complaints of chronic low back pain since August 2005. The Veteran participated in physical therapy weekly, used a heating pad, and was prescribed medication. In September 2010, X-ray showed slight narrowing of the intervertebral disc spaces, which suggested degenerative discogenic disease at the L1-2 and L5-S1. In December 2014, a private physician opined that the Veteran’s lower back pain with arthritis and degenerative disc disease were related to his service-connected cervical spine injury. No rationale was provided. During his June 2018 Board hearing, the Veteran stated that while in service, his truck was hit with a grenade, that he was ejected, and that he had a lower back disability. He reported being subsequently treated at the Camp Pendleton Hospital. During testimony presentation, the Veteran’s representative noted that the Veteran was in receipt of a 100 percent disability rating from posttraumatic stress disorder (PTSD) and that his PTSD and medication affected his memory. In December 2019, the Veteran’s complete military medical records were requested, including any treatment at the Camp Pendleton Hospital. Treatment records from at the Camp Pendleton Hospital revealed complaints of neck and thigh pain that were treated with prescription medication; however, there were no back condition complaints or treatment. In February 2020, the Veteran had a VA examination for his lumbar spine condition. He was diagnosed with lumbar degenerative disc disease and IVDS. He reported mid-to-low back pain, along with numbness and tingling that radiated down both lower thighs with sitting more than 30 minutes, standing more than 10 minutes, or lifting objects heavier than a few pounds. He did not report flare-ups. Upon examination, pain was noted that caused functional loss. Degenerative disc disease of the lumbar spine was evident from a September 2010 image study. The examiner opined that the Veteran’s lumbar spine condition was less likely than not either incurred in or caused by military service or proximately due to or the result of or permanently aggravated beyond clinical expectation by his service-connected cervical spine condition. The examiner reviewed the Veteran’s claims file, as well as performed a clinical and physical evaluation. While the Veteran contended that the onset of low back pain was during active service and a private physician posited degenerative lumbar spine disease “indirectly related to compensating for his cervical (spine) injuries” in December 2014, the STRs and VA treatment records are negative for a lumbar spine injury or condition. Also, medical treatment records did not document a continuous, ongoing, or chronic lumbar spine condition that was proximately subsequent to military service. Further, there has not been objective evidence conclusively demonstrating a clear-cut, definitive, and clinically plausible medical nexus associating the Veteran’s cervical and lumbar spine conditions. Therefore, the evidence fails to substantiate the Veteran’s claims as contended. The Veteran has current diagnoses of degenerative joint disease of the lumbar spine. As noted, arthritis is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Arthritis was not shown in service and it was not diagnosed until years after service and outside of the applicable presumptive period. The February VA examiner noted that the Veteran’s STRs did not document a lumbar spine condition and there is no evidence of degenerative joint disease of the lumbar spine until September 2010, decades after active service. While the Veteran is competent to report having experienced symptoms of back pain since service, he does not have the training or credentials to provide a diagnosis in this case or to determine that these symptoms were manifestations of degenerative arthritis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Service connection for a low back disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s low back disorder and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131. Further, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s arthritis of the back is proximately due to or aggravated by a service-connected disability. The Veteran is competent to report symptoms of back pain as it is readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology of his degenerative joint disease of the lumbar spine. The February 2020examiner’s opinion is the most probative evidence in this case, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page)   The Board finds that there is no competent medical evidence of record to indicate that the Veteran’s lumbar spine disability is etiologically related to his military service or to a service-connected disability. As the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disability, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.