Citation Nr: 21007914 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-07 272 DATE: February 11, 2021 ORDER The appeal for entitlement to an earlier effective date prior to March 26, 2009, for the grant of service connection for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis is dismissed. Entitlement to a disability rating higher than 20 percent for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal for entitlement to an earlier effective date prior to March 26, 2009 for the grant of service connection for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis. 2. The Veteran’s cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis was productive of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 3. The evidence of record shows that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to an earlier effective date prior to March 26, 2009, for the grant of service connection for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to an increased evaluation higher than 20 percent for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5243. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1961 to December 1961. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. 1. Entitlement to an earlier effective date prior to March 26, 2009, for the grant of service connection for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the February 2020 Board hearing, the Veteran withdrew the appeal on the issue of entitlement to an earlier effective date prior to March 26, 2009, for the grant of cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis “cervical spine disability,” hence there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is dismissed. 2. Entitlement to a disability rating higher than 20 percent for cervical spondylosis with minor canal stenosis and minor cord compression with degenerative arthritis Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where 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 rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. CAVC has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). Additionally, CAVC, 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 non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran’s cervical spine is evaluated as 20 percent disabling under DC 5242. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent at any time during the pendency of this claim. The Veteran underwent an examination in March 2014. He reported flare-ups two to three times per week with a loss of 20 degrees of forward flexion and extension, and right and left rotation and lateral flexion due to pain and fatigue, incoordination or weakness. Range of motion testing revealed flexion to 35 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 55 degrees, with pain. There was no additional limitation in range of motion of the cervical spine following repetitive use testing. Functional loss and impairment were described as less movement than normal, pain on movement, interference with sitting standing or weight bearing, and lack of endurance. He had localized tenderness or pain to palpation of the joints and soft tissue of the cervical spine. He had muscle spasms that result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, and he had no atrophy. Sensory examination testing was normal, and there was no evidence of radiculopathy. There was no indication of IVDS or ankylosis. A well healed post-surgical, non-tender, horizontal scar over the anterior neck, was noted measuring 7 cm long. At the February 2020 examination, he reported stiffness and sharp pain throughout the day. He was taking oxycodone as needed, and had a history of a bone fusion in his posterior neck. Flare-ups were described as stiffness and sharp pain throughout the day. He reported functional impairment when sitting and bending or turning his neck. Range of motion testing revealed flexion and extension 0 to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 55 degrees, and left lateral rotation to 60 degrees. Functional loss was described as limitation in range of motion when siting and bending or turning his neck. He had pain in range of motion testing, and there was localized tenderness to the posterior neck, 8 out of 10. There was no additional loss of function or range of motion after three repetitions. The examiner opined that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, or during a flare-up. Pain, weakness and lack of endurance limit functional ability with repeated use over time, and during a flare-up. This was described in terms of range of motion as flexion to 30, extension to 30, right lateral flexion to 25, left lateral flexion to 30, right lateral rotation to 55, and left lateral rotation to 60. He did not have guarding or muscle spasms of the neck. Muscle strength testing was normal, and he had no atrophy. He was noted as having disturbance of locomotion and interference with sitting. Sensory exam testing was normal, and there was no evidence of radiculopathy. He does not have IVDS, or ankylosis of the spine. There was objective evidence of pain when the neck was used in non-weight bearing. Passive range of motion for the neck was the same as active range of motion. There was no objective evidence of pain on passive range of motion testing. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this cervical spine disability meets the criteria for a higher rating. Even considering the Veteran’s subjective complaints of pain, the evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation higher than 20 percent. Throughout the period on appeal his flexion has been, at worst, to 30 degrees. To meet the criteria for a 30 percent rating, the range of flexion would have to be limited to 15 degrees or less or favorable ankylosis of the entire cervical spine under diagnostic code 5237. At the 2014 examination, flexion was, at worst, to 35 degrees; and in 2020 his flexion was at worst to 30 degrees, with no additional limitation in range of motion following three repetitions. As for repetitive use over time and during a flare- up, the 2020 examiner identified there was no identified change in range of motion ability. Regarding Correia criteria, at the 2020 examination there was objective evidence of pain when the spine is used in non-weight bearing, and passive range of motion was the same as active range of motion. There was objective evidence of pain that was the same as that in active range of motion. The Court has established that flare-ups must be considered. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. At the 2020 examination, the examiner indicated there was no limit in functional ability with a flare up, and there would be no change in range of motion during a flare. Accordingly, there is no basis on which to warrant a higher evaluation based upon flare-ups. There is no probative evidence that the Veteran has had forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The Veteran’s reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation, and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Higher evaluations are also available for intervertebral disc syndrome. Throughout the period on appeal the Veteran has not been found to have IVDS, and there is no evidence showing treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. As such throughout the entire period on appeal, a higher evaluation under DC 5243 is not warranted. At no time during the pendency of the appeal, have there been findings of ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the limitation of motion noted by the VA examiners (including negative findings of ankylosis), and VA medical providers, the Board finds that at no time during the course of the appeal has the Veteran had ankylosis of the spine. The assigned 20 percent rating adequately contemplates the Veteran’s level of impairment—including consideration of functional impairment during flare-ups or following repetitive motion. As such, a higher evaluation is not warranted due to functional loss. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. There have been no findings of radiculopathy or of any other neurological abnormalities associated with the Veteran’s cervical spine. Accordingly, a separate rating for a neurological disability is not warranted. With respect to his cervical spine scar, the Veteran is in receipt of a noncompensable evaluation for his cervical spine scar. Throughout the rating period, the Veteran’s scar has been described as linear, not painful, and not unstable. 38 C.F.R. § 4.118. A compensable evaluation is warranted if the scar is painful or unstable. There is no indication the scar has been painful or unstable, hence further discussion is not warranted. Accordingly, entitlement to an evaluation higher than 20 percent for the cervical spine disability is not warranted. 3. Entitlement to TDIU The Veteran asserts he is unable to work as a result of his service-connected disabilities. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for the following: bilateral hearing loss with a 10 percent from March 2009 and a 60 percent evaluation from September 2016, degenerative disc disease of the lumbar spine with a 40 percent evaluation from July 2003, cervical spondylosis with a 20 percent from March 2009, tinnitus with a 10 percent evaluation from March 2009, right lower extremity peripheral neuropathy with a 10 percent from July 2003, and left lower extremity radiculopathy with a 10 percent from January 2020. The Veteran is in receipt of a combined evaluation of 70 percent from March 2009, and 90 percent from September 2016. The Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. In a completed 21-8940, the Veteran reported working as a manager for social expressions from January 1984 to January 2003. He reported he stopped working as a result of hearing loss, and his lumbar and cervical spine disabilities. He indicated he had worked as a manager for Social Expressions. In a completed 21-4192, it was noted Social Expressions was closed, no longer in business. In September 2018 statement, he reported constant pain, and being in a wheelchair most of the time. He reported being in constant need of assistance from his spouse. He testified at the hearing to being completely dependent on his spouse for all activities, as a direct result of his service-connected disabilities. At the March 2020 hearing loss and tinnitus examination, the examiner noted the Veteran has moderate to severe hearing loss bilaterally. With this level of loss, there would be extreme difficulty with the ability to fill and recognize acoustic signals in adverse listening environment, as well as clearly understand what is being said either in person or via the telephone. At the February 2020 neck and lumbar spine examination, the examiner noted the Veteran has functional impairments when sitting and bending, and with turning his neck which would affect all forms of work. The Veteran was noted as having functional impairments when sitting, standing and walking long distances which would affect all forms of work. Though the Veteran has reported experience as manager, which would likely allow for periods of sedentary work, he last worked in 2003. There remains no indication the Veteran has an occupational background that would apply to a sedentary occupation. See also Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Further, his symptoms would interfere with any employment be it sedentary or physical. As is stated above, he has severe hearing loss, and orthopedic pain, which would interfere with his ability to work be it from home or in an office setting. The Veteran has consistently reported his service-connected conditions have an impact on his ability to secure employment. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.