Citation Nr: 21007962 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-00 502 DATE: February 11, 2021 ORDER Entitlement to increased rating for cervical spine degenerative arthritis and degenerative disc disease, rated as 10 percent disabling prior to March 17, 2020 and 30 percent thereafter, is denied. FINDING OF FACT 1. For the appeal period prior to March 17, 2020, the Veteran’s cervical spine degenerative arthritis and degenerative disc disease manifested as forward flexion of the cervical spine to 40 degrees and a combined range of motion of 295 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, intervertebral disc disease (IVDS) requiring medically prescribed bedrest, associated objective neurological abnormalities or ankylosis. 2. For the appeal period beginning on March 17, 2020, the Veteran’s cervical spine degenerative arthritis and degenerative disc disease manifested as forward flexion of the cervical spine to 15 degrees and a combined range of motion of 75 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without IVDS, associated objective neurological abnormalities other than right upper extremity radiculopathy, ankylosis. CONCLUSION OF LAW The criteria for entitlement to increased rating for cervical spine degenerative arthritis and degenerative disc disease, rated as 10 percent disabling prior to March 17, 2020 and 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.45, 4.59, 4.71(a). Diagnostic Codes 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1984 to August 1984, from July 1987 to January 1999, and from August 2002 to February 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO). In November 2016, the Veteran submitted correspondence indicating that he wished to withdraw his request for a hearing before the Board. There are no other hearing requests or requests to reschedule of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). The matter previously came before the Board and was remanded back to RO in May 2018, for additional development, to include obtaining all outstanding VA and private records, and to schedule the Veteran for a VA examination to determine the current nature and severity of his cervical spine disability. The Board remanded the matter again in March 2020 for another examination to determine the most current state of the Veteran’s disability. Updated VA treatment records have been associated with the record and a July 2020 VA examination was conducted. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). In an August 2020 rating decision, the RO granted a 30 percent rating for cervical spine degenerative arthritis and degenerative disc disease, effective March 17, 2020. However, a higher rating is available for the cervical spine. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to increased rating for cervical spine degenerative arthritis and degenerative disc disease is denied. The Veteran asserts that he is entitled to an increased rating for his cervical condition, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. In a December 2014 substantive appeal, the Veteran asserted that that muscle spasms and range of motion associated with his cervical spine warranted a 20 percent rating. The Veteran’s condition was originally claimed as cervical muscle strain with residual pain. However, in a recent VA examination, the Veteran’s condition was diagnosed as cervical spine degenerative joint disease and degenerative disc disease and was recharacterized by the RO. This condition is contemplated under Diagnostic Code 5242 in the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Disability evaluations are determined by evaluating the extent to which a veteran’s service connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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. See 38 C.F.R. § 4.40; 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was granted service connection for his cervical spine condition in a January 2012 rating decision by RO. The Veteran is currently rated at 10 percent for the period of prior March 16, 2020 and at 30 percent from March 17, 2020 onwards, pursuant to Diagnostic Code 5242. 38 C.F.R. § 4.71a. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted when forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 when forward flexion of the cervical spine is 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 at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees, extension to 45 degrees, left and right lateral flexion are to 45 degrees, and left and right lateral rotation to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Note (2); see also Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which 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 the spinal segment in a neutral position (zero degrees) is indicative of favorable ankylosis, not unfavorable ankylosis. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran was granted service connection for his shoulder condition, effective March 1, 2011. As such, the Board will consider all evidence from that date onwards. For the appeal period prior to March 17, 2020, the Board finds that a rating in excess of 10 percent is not warranted. Forward flexion of the cervical spine was to 45 degrees and a combined range of motion of 295 degrees with no pain and no reduced range of motion or pain on repetitive motion testing at the August 2011 VA examination. At the October 2019 VA examination, forward flexion of the cervical spine was found to be to 40 degrees and a combined range of motion of 315 degrees with pain on range of motion and no reduced range of motion on repetitive use testing. There was no clinical evidence showing limitation in forward flexion to 15 degrees, a combined range of motion limited to 170 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour of the cervical spine at any part of the appeal period, even with consideration of painful motion and other factors discussed in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. None of the clinical records reflect such criteria as required for a higher rating based on range of motion. Id. The Board notes that the Veteran has described painful motion of the cervical spine and has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, supra. However, there is no objective evidence that this painful motion has resulted in measurable functional impairment. In this regard, the Veteran reported pain that was constant with movement and a sharp shooting pain into the neck during the October 2019 VA examination. However, even in considering the Veteran’s subjective complaints, the evidence of record does not support any additional limitation of function in response to repetitive motion or flare-ups that would support a rating in excess of the 10 percent assigned prior to March 1, 2011. See DeLuca, supra; Mitchell, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown in the record or alleged by the Veteran. For the appeal period beginning on March 17, 2020, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran’s examinations have been consistently negative for ankylosis and the Veteran has retained range of motion in the spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable) Therefore, the Board finds that, at no time during the appeal period has the Veteran’s service-connected cervical spine degenerative arthritis and degenerative disc disease resulted in ankylosis warranting a higher rating. The Board has considered whether a higher evaluation could be assigned for any period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this case, there is no evidence that the Veteran has had incapacitating episodes as defined by VA regulations. Rather, the Veteran has not alleged, nor does the evidence show, that the Veteran has a diagnosis of IVDS that resulted in medically prescribed bedrest. Specifically, the Veteran was shown to have IVDS at his October 2019 VA examination. Accordingly, a higher or separate rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In addition to considering the orthopedic manifestations of a spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has nerve impairment of the left upper extremity, bladder impairment or bowel impairment as a result of his service-connected cervical spine disorder. The Board notes that the Veteran is currently in receipt of a separate rating for right upper extremity radiculopathy as of December 17, 2019; prior to that time, symptoms associated with such condition were not reflected in the record. Therefore, the Board finds that, at no time during the appeal period, has the Veteran’s service-connected cervical spine disorder resulted in neurological impairment. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examination in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded an addendum examination to ensure compliance with Correia and Sharp. In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. An October 2019 VA examiner measured active range of motion, noted that passive range of motion testing could not be conducted as it was not feasible to do so in a safe manner and noted that a non-weight bearing assessment was not applicable but that there was no objective evidence of pain when the spine was in a non-weight bearing position at rest. In addition, the October 2019 VA examiner determined that there was no basis to offer additional losses of function or motion during a flare-ups. Moreover, the Veteran has been in receipt of a 30 percent rating since March 17, 2020 and a higher rating is only available for ankylosis, hence, the holdings of Correia and Sharp are not applicable for this appeal period. Therefore, the Board finds that all information required for rating purposes has been provided. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. In assessing the severity of the Veteran’s cervical condition, the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran’s lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his cervical condition according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not asserted at any point in time that he is unable to secure and maintain employment due to his service-connected cervical spine disorder. Moreover, the Veteran reported that he was working full-time in a July 2020 VA examination. Therefore, a TDIU has not been raised. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating for cervical spine degenerative arthritis and degenerative disc disease, rated as 10 percent disabling prior to March 17, 2020 and 30 percent thereafter. Given that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.