Citation Nr: 21007418 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-57 185 DATE: February 9, 2021 ORDER An initial increased rating in excess of 20 percent for a cervical spine disorder, from August 8, 2019 to October 11, 2020, and in excess of 30 percent, from October 12, 2020 to the present, is denied. Service connection for a headache condition, as secondary to the service-connected cervical spine disorder, is granted. FINDINGS OF FACT 1. For the period from August 8, 2019 to October 11, 2020, the Veteran’s cervical spine disability manifested as limitation of forward flexion to 20 degrees with muscle spasm not resulting in abnormal gait or abnormal spine contour, without guarding, and without ankylosis. 2. For the period from October 12, 2020 to the present, the Veteran’s cervical spine disability manifested as limitation of forward flexion of the cervical spine to 10 degrees without ankylosis. 3. The Veteran's headache condition was proximately caused by his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. For the period from August 8, 2019 to October 11, 2020, the criteria for an initial increased rating in excess of 20 percent for a cervical spine disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. For the period from October 12, 2020 to the present, the criteria for an initial increased rating in excess of 30 percent for a cervical spine disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria to establish service connection for a headache condition, as secondary to the service-connected cervical spine disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1965 to October 1967. This matter was previously before the Board of Veterans’ Appeals (Board) in May 2020 when the matter was remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings VA's schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are warranted if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). 1. An initial increased rating in excess of 20 percent for a cervical spine disorder, from August 8, 2019 to October 11, 2020, and in excess of 30 percent, from October 12, 2020 to the present, is denied. On remand, the Regional Office (RO) denied a rating in excess of 20 percent for the Veteran’s cervical spine disability, from August 8, 2019 to October 11, 2020, and granted a 30 percent rating, from October 12, 2020 to the present. For the reasons set forth below, an initial increased rating in excess of 20 percent for the cervical spine disorder, from August 8, 2019 to October 11, 2020, and in excess of 30 percent, from October 12, 2020 to the present, is not warranted. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237, 5242, & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). Under the General Rating Formula, a 20 percent is assigned for forward flexion of the cervical spine to greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the cervical spine to 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 to 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, and a 100 percent rating is assigned for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. VA defines unfavorable ankylosis as when the entire cervical spine, the entire 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. Id. at Note (5). The Veteran was afforded a VA examination in August 2019. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted diagnoses of degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine. Current symptoms of neck pain, stiffness, and ulnar distribution numbness in the left arm and hand were noted. Flare-ups were reported. Specifically, the Veteran stated, "my neck pain is sharp and gets stiff and gives me headaches." The Veteran reported functional loss or impairment of the cervical spine. He stated that "I can't move my neck in full range of motion without sharp pain.” Initial range of motion (ROM) measurements were recorded as the following: forward flexion to 20 degrees, extension to 15 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 35 degrees. ROM was noted to contribute to a functional loss in that the Veteran’s disrupted ROM limits his field of vision. Pain was noted to cause functional loss on all movements tested. Objective evidence of localized tenderness or pain on palpation was noted in the location of the mild posterior neck, which was noted as moderate in severity. Evidence of pain on weight bearing was noted. Repetitive-use testing was performed with at least three repetitions and was recorded as the following: forward flexion to 20 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. Pain, weakness, and lack of endurance were noted to cause the recorded functional loss. The Veteran was not examined immediately after repetitive use over time. However, the examiner noted that pain, weakness, and lack of endurance significantly limits functional ability with repeated use over a period of time. Additional limitation of ROM with repeated use over a period of time was described as the following: forward flexion to 20 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. The examination was not conducted during a flare-up; however, the examiner noted that pain, weakness, and lack of endurance significantly limits functional ability with flare-ups. The limitation of ROM during flare-ups was described as the same as that recorded for repeated use over a period of time. The examiner noted that the Veteran has muscle spasm not resulting in abnormal gait or abnormal spinal contour. No guarding was indicated. No additional factors contributing to the Veteran’s condition were indicated. Muscle strength was noted four out of five, on all movements tested. Muscle atrophy was denied. All reflexes tested were noted as hypoactive. The Veteran had decreased sensation to light touch on all areas tested, but for the right shoulder, which was normal. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The regular use of a cane for hip arthritis was noted. No other pertinent findings were noted. Available imaging studies were noted to show arthritis and cervical vertebral fracture with loss of 50 percent or more of height. In terms of functional impact, the examiner noted that the Veteran has disrupted ability to lift, and an inability to push or pull greater than 10 pounds due to cervical DDD with cervical radiculopathy. Objective evidence of pain when the neck is used in non-weight-bearing was noted. Passive ROM was noted as the same as active ROM. In the March 2020 Board hearing, the Veteran stated that his neck pain has worsened within the last couple of months. The Veteran described symptoms as stiffness, pain in arms, pain in the center of his back, and radiating pain into his shoulders and down the center of his back. The Veteran also described symptoms of headaches, which he stated are brought on by neck pain. Pursuant to the May 2020 Board remand, the Veteran was afforded a VA examination in October 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted a diagnosis of degenerative arthritis of the cervical spine. The Veteran reported that his condition has worsened since his last VA examination. In particular, the Veteran reported current constant neck pain in the midline of his neck. No flare-ups were reported. Functional loss or impairment was noted as constant pain, sharp pain, an inability to sleep, an inability to look over the shoulder, and an inability to bend down. Initial ROM measurements were recorded as the following: forward flexion to 10 degrees, extension to 5 degrees, bilateral flexion to 10 degrees, right lateral rotation to 12 degrees, and left lateral rotation to 25 degrees. Pain was noted to cause functional loss in the following movements: extension, bilateral flexion, and bilateral rotation. No objective evidence of localized tenderness or pain on palpation was noted. No evidence of pain on weight bearing was noted. Repetitive-use testing was performed with at least three repetitions. However, no additional functional loss or ROM after three repetitions was noted. The Veteran was not examined immediately after repetitive use over time. However, the examiner noted that pain significantly limits functional ability with repeated use over a period of time. Additional limitation of ROM with repeated use over a period of time was described as the following: forward flexion to 10 degrees, extension to 5 degrees, bilateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. The examination was not conducted during a flare-up and the examiner noted that pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare-ups. The examiner noted that the Veteran has muscle spasm resulting in abnormal gait or abnormal spine contour. In particular, the examiner noted that the Veteran has pain, poor ROM, and spasm. No guarding was indicated. No additional factors contributing to the Veteran’s condition were indicated. Muscle strength was noted as normal, five out of five, on all movements tested. Muscle atrophy was denied. Reflexes of the bilateral bicep and brachioradialis were noted as hypoactive. The Veteran had normal sensation to light touch on all areas tested. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were noted. Available imaging studies were noted to show arthritis. In terms of functional impact, the examiner noted that the Veteran has constant pain, poor ROM, and is unable to look up or over his shoulders very well. Objective evidence of pain when the neck is used in non-weight-bearing was noted. Passive ROM was noted as the same as active ROM. Higher ratings are not warranted under the criteria for IVDS at any time during the period on appeal since IVDS was denied throughout the relevant period. For the period from August 8, 2019 to October 11, 2020, the evidence does not warrant a rating higher than 20 percent. Although, the Veteran contends that a higher rating is warranted for the period, the VA examination in August 2019 shows that the Veteran had forward flexion limited to no more than 20 degrees without ankylosis, even considering pain and stiffness. Therefore, for the period from August 8, 2019 to October 11, 2020, a higher 30 percent rating, is not warranted for the Veteran’s cervical spine disorder. For the period from October 12, 2020 to the present, the evidence does not warrant a rating higher than 30 percent. The VA examination in October 2020 shows that the Veteran had forward flexion limited to no more than 10 degrees without ankylosis, even considering pain. Therefore, for the period from October 12, 2020 to the present, a higher 40 percent rating, is not warranted for the Veteran’s cervical spine disorder. In conclusion, an initial increased rating in excess of 20 percent for the Veteran’s cervical spine disorder, from August 8, 2019 to October 11, 2020, and in excess of 30 percent, from October 12, 2020 to the present, is not warranted and, the claim is denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 2. Service connection for a headache condition, as secondary to the service-connected cervical spine disorder, is granted. For the reasons set forth below, service connection for a headache condition is warranted on a secondary basis. As noted above, in the August 2019 VA examination for the service-connected cervical spine disorder, the Veteran reported that his neck pain causes headaches. Also as noted above, in the March 2020 Board hearing, the Veteran described symptoms of headaches, which he stated are brought on by neck pain. Pursuant to the May 2020 Board remand, the Veteran was afforded a VA examination in October 2020. The examiner was asked to provide an opinion as to whether the Veteran’s headaches are caused by or is otherwise related to his service-connected cervical spine disorder The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner opined that the Veteran’s headaches are related to his cervical spine disorder. The examiner noted that the Veteran’s headaches start at the base of the skull and upper cervical spine, usually when neck pain is significant. The examiner explained that the Veteran has significant degenerative arthritis of the cervical spine and that the condition is known to trigger tension headaches from muscle spasm. (Continued on the next page.) In light of the positive October 2020 VA opinion relating the Veteran's headache condition to his service-connected cervical spine disorder, and given that there is no negative evidence to the contrary, the competent medical evidence reasonably shows that the Veteran's current headache condition was caused by his service-connected cervical spine disorder. Accordingly, service connection for a headache condition on a secondary basis is warranted and, the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.