Citation Nr: 21008171 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-40 854 DATE: February 11, 2021 ORDER 1. Prior to May 29, 2003, an initial disability evaluation in excess of 10 percent for cervical stenosis with degenerative joint disease (DJD) and strain is denied. 2. From May 29, 2003 to March 22, 2016, a disability evaluation of 20 percent, and no higher, for cervical stenosis with DJD and strain is granted. 3. Resolving all reasonable doubt in favor of the Veteran, from March 23, 2016 to July 20, 2020, a disability evaluation of 30 percent, and no higher, for cervical stenosis with DJD and strain is granted. 4. From July 21, 2020 forward, a disability evaluation in excess of 30 percent for cervical stenosis with DJD and strain is denied. FINDINGS OF FACT 1. Prior to May 29, 2003, the Veteran’s cervical stenosis with degenerative joint disease (DJD) and strain has not been productive of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or, incapacitating episodes requiring bed rest prescribed by a physician. 2. From May 29, 2003 to March 22, 2016, the Veteran’s cervical spine disability is manifested by pain and forward flexion to approximately 20 degrees; there is no evidence of forward flexion limited to 15 degrees, ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. 3. From March 23, 2016 to July 20, 2020, the Veteran’s cervical spine disability approximated 15 degrees or less. 4. From July 21, 2020 forward, the Veteran’s cervical spine disability is manifested by forward flexion not greater than 15 degrees, but no unfavorable ankylosis of the entire cervical spine or any incapacitating episodes. CONCLUSIONS OF LAW 1. Prior to May 23, 2003, the criteria for an evaluation in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5242-5237. 2. From May 29, 2003 to March 22, 2016, the criteria for an evaluation of 20 percent for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. 3. From March 23, 2016 to July 20, 2020, the criteria for a 30 percent evaluation for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237. 4. From July 21, 2020 forward, the criteria for an evaluation in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1964 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for cervical stenosis with DJD and strain and assigned a 10 percent evaluation effective June 22, 2000. In addition to the claim on appeal, the Veteran initially appealed the effective date for the grant of service connection for the service-connected spine disability. In an October 2018 rating decision, the RO granted an earlier effective date of July 19, 1999 which was noted to be a full grant. As this issue was granted, it is no longer before the Board. The Board remanded the case for further development in April 15, 2020. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in an October 2018 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation to 20 percent effective May 3, 2017, and then again in a September 2020 rating decision to 30 percent effective July 20, 2020. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. This matter has been advanced on the docket. 38 C.F.R. § 20.902. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. An initial disability evaluation in excess of 10 percent for cervical stenosis with degenerative joint disease (DJD) and strain prior to May 29, 2003 is denied. The Veteran’s cervical stenosis with DJD and strain are currently assigned a 10 percent evaluation prior to May 3, 2017, a 20 percent evaluation prior to July 20, 2020, and a 30 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Both Diagnostic Codes 5242 and 5237 indicate that that degenerative arthritis should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula, 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, a 10 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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 evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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 evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the cervical spine is 45 degrees of forward flexion, 45 degrees of extension, 45 degrees of left and right lateral flexion, and 80 degrees of left and right lateral rotation. The normal combined range of motion of the cervical spine is 340 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Moreover, 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 a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). In considering the evidence of record, the Board concludes that the Veteran is not entitled to an evaluation in excess of 10 percent prior to May 29, 2003 for his service-connected cervical spine disability. Private treatment records reveal cervical pain with range of motion (ROM) within normal limits. See November 1998 Medical Treatment Record- Non-Government Facility; see also April 2002 Spindex Physical Therapy Note. A June 2002 private cervical examination report reveals cervical pain with forward flexion to 45 degrees, extension to 27 degree, right lateral flexion to 21 degrees, left lateral flexion to 21 degrees, right rotation to 45 degrees, and left rotation to 38 degrees. Medical records furnished by the Social Security Administration (SSA) include a May 29, 2003 cervical spine examination report which indicates limited range of motion of the cervical spine, to include forward flexion to approximately 20 degrees, and extension to 10 degrees. For the period prior to May 29, 2003, the Veteran has not shown to have forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees. In fact, November 1998 private treatment reports reveal normal range of motion of the cervical spine, and the June 2002 private cervical examination report reveals forward flexion to 45 degrees. During the period, the evidence also does not show that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In addition, for the period prior to May 29, 2003, the evidence does not show that the Veteran’s combined range of motion of the cervical spine was not greater than 170 degrees. In fact, the June 2002 private cervical examination report reveals a combined range of motion of the cervical spine of 197 degrees. With regard to assigning higher ratings according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran’s reported complaints of pain. The Board has considered pain as limiting his ranges of motion as described above. The Board finds, however, that painful motion is already contemplated by the currently assigned 10 percent rating. In addition, there is no objective evidence of record reflecting that, during the applicable staged period, the Veteran experienced additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination. In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board”) (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Therefore, the Board concludes that entitlement to a 10 percent rating for the Veteran’s cervical spine disability is warranted; and entitlement to an evaluation in excess of 10 percent for a cervical spine disability is not warranted; the benefit of the doubt rule is not for application. 2. From May 29, 2003 to March 22, 2016, a disability evaluation of 20 percent, and no higher, for cervical stenosis with DJD and strain is granted. As noted above, medical records furnished by the Social Security Administration (SSA) include a May 29, 2003 cervical spine examination report which indicates limited range of motion of the cervical spine, to include forward flexion to approximately 20 degrees, and extension to 10 degrees. A June 2006 private examination revealed cervical flexion to 25 degrees, extension to 50 degrees, right lateral flexion to 50 degrees, left lateral flexion to 50 degrees, right rotation to 25 degrees, and left rotation to 25 degrees. The Veteran submitted additional private medical records revealing cervical forward flexion to 30 degrees. See July 2006 Outpatient Rehabilitation Record. The Veteran underwent a VA examination for his cervical spine condition in August 2009. The report shows the Veteran endorsed severe pain, decreased motion, stiffness, weakness, and spasms. The Veteran further reported weekly flareups which cause additional limitation of motion. Inspection of the spine revealed an abnormal gait, and no ankylosis. Examination of active motion revealed flexion to 40 degrees, extension to 35 degrees, left lateral flexion to 25 degrees, left lateral rotation to 40 degrees, right lateral flexion to 25 degrees, and right lateral rotation to 40 degrees. The Veteran did not have intervertebral disc syndrome (IVDS) and incapacitating episodes. The December 2013 VA examination report notes the Veteran’s report of periods of flare. Initial ROM measurements reveal forward flexion to 45 degrees with no objective evidence of painful motion, extension to 40 degrees with objective evidence of painful motion at 40 degrees, right lateral flexion to 15 degrees with no objective evidence of painful motion, left lateral flexion to 10 degrees with evidence of painful motion at 10 degrees, right lateral rotation to 80 degrees with no objective evidence of painful motion, and left lateral rotation to 80 degrees with no objective evidence of painful motion. Post repetitive use testing revealed flexion to 45 degrees, and extension to 40 degrees, with no additional functional loss. The Veteran was not found to have ankylosis of the spine, or IVDS and incapacitating episodes. The examiner remarked that there was no observed increase in disability from pain, weakness, fatiguability, or incoordination with repetitive motion or during flares. In light of all the above evidence of record, the Board finds that the criteria for a 20 percent rating have been met based on the fact that during this period the Veteran’s forward flexion has been, at best to 30 degrees. While the Board acknowledges the August 2009 and December 2013 examination reports indicating forward flexion to 40 and 45 degrees, the Board notes that the Veteran reported periods of flare in August 2009, and the VA examiner failed to provide an opinion regarding the Veteran’s ROM during a flare, passive range of motion testing, and testing upon weight and non-weight bearing. This is of great import so to estimate the functional effects of the Veteran’s periods of flare. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the December 2013 examination report is also not Correia compliant due to the examiner’s failure to note passive range of motion testing, and testing upon weight and non-weight bearing. Therefore, the Board finds that entitlement to the 20 percent rating is warranted for this staged period on appeal. The Board finds that the preponderance of the evidence is against finding that the criteria for a rating in excess of 20 percent are met or approximated. As shown above, forward flexion has never been shown to be limited to 15 degrees or less, and no ankylosis is shown during this staged period. The Board further finds that the Veteran is not shown to meet the criteria for a higher rating under the Formula for Rating IVDS because no incapacitating episodes are shown. With regard to assigning higher ratings according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran’s reported complaints of pain. The Board has considered pain as limiting his ranges of motion as described above (i.e., as limiting his ranges of motion as shown on VA examination). The Board finds, however, that painful motion is already contemplated by the currently assigned 20 percent rating. In addition, there is no objective evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, beyond that already noted by the private medical evidence of record. In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board”) (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Therefore, the Board concludes that entitlement to a 20 percent rating for the Veteran’s cervical spine disability is warranted; and entitlement to an evaluation in excess of 20 percent for a cervical spine disability is not warranted; the benefit of the doubt rule is not for application. 3. From March 23, 2016 to July 20, 2020, disability evaluation of 30 percent, and no higher, for cervical stenosis with DJD and strain is granted. A March 23, 2016 private examination revealed cervical flexion to 9 degrees. May 3, 2017, the Veteran was afforded a VA examination for his cervical spine condition. He reported neck pain, stiffness, and burning pain and tightness in his shoulders. No periods of flare were reported. Initial ROM measurements showed forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Pain was found to cause functional loss, and there was no evidence of pain with weight bearing or non-weight bearing. Post repetitive use testing revealed no additional loss of function. The Veteran did not ankylosis of the spine, nor IVDS requiring bed rest. Based on a careful review of the subjective and clinical evidence, the Board finds that, resolving all reasonable doubt in favor of the Veteran, from March 23, 2016, the date of the private treatment record, until July 20, 2020, the Veteran warrants a 30 percent evaluation for his cervical spine disability. The Board further finds the May 2017 VA examination to be inadequate for rating purposes. While the examiner noted that the Veteran’s pain caused functional loss, he did not note the degrees at which the pain began. The Board emphasizes that the May 2017 examiner found forward flexion to 20 degrees, but as mentioned, failed to note the degrees at which pain began. Thus, the Board finds that it is safe to assume that the Veteran’s range of motion during this staged period, considering painful motion, was consistent or at least very close to the range of motion recorded in the March 2016 private examination. The evidence does not show ankylosis at any point during this staged period. Furthermore, acknowledging that the Veteran was not diagnosed with IVDS at any point during this staged period, the Board finds that a higher evaluation under Diagnostic Code 5243 is not warranted. Moreover, the medical evidence of record does not indicate ankylosis of the Veteran’s cervical spine. The May 2017 examiner did not find ankylosis of the spine. Accordingly, the Board concludes that the Veteran’s cervical spine disability is no more than 30 percent disabling for the period from March 23, 2016 to July 20, 2020. 4. From July 21, 2020 forward, a disability evaluation in excess of 30 percent for cervical stenosis with DJD and strain is denied. A July 2020 VA examination diagnosed the Veteran with cervical stenosis with degenerative joint disease and strain. The Veteran reported daily pain and reduced ROM with episodes of flare. The Veteran further reported having functional loss or functional impairment of the cervical spine. Upon examination, initial ROM revealed forward flexion to 25 degrees and extension to 5 degrees. There was no evidence of pain with weight bearing. Post repetitive use testing revealed no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time; however, the examination report notes pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. Describing in terms of ROM, the report indicates forward flexion to 10 degrees and extension to 0 degrees. The examination was not conducted during an episode of flare, but pain, weakness, fatigability, or incoordination were found to significantly limit functional ability with flare-ups. The examiner described the functional loss as forward flexion to 10 degrees, and extension to 0 degrees. The Veteran was noted to have guarding or muscle spasm of the cervical spine which did not result in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine, and no episodes of IVDS. Based on the evidence of record, the Board finds that an evaluation in excess of 30 percent is not warranted under Diagnostic Code 5254. There is no evidence of the Veteran’s cervical spine disability manifesting in functional limitation equivalent to unfavorable ankyloses of the entire cervical spine. With respect to the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca consideration, the Veteran’s painful motion is already contemplated by the currently assigned 30 percent rating. There is also no evidence of ankylosis at any time. With respect to the criteria set forth in the Formula for Rating IVDS based on incapacitating episodes, none were reported by the Veteran or noted by the examiner. In sum, a review of all the evidence of record, lay and medical, does not reflect that at any point during the staged rating period on appeal the Veteran had unfavorable ankylosis of the cervical spine and/or IVDS with incapacitating episodes having a total duration of at least four weeks during the past 12 months. Therefore, a disability rating in excess of 30 percent for cervical spine condition is not warranted at any point during the rating period on appeal. As the preponderance of the evidence is against a disability rating in excess of 30 percent at any point during the rating period on appeal, a disability rating in excess of 30 percent for cervical spine DJD must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.