Citation Nr: 21008270 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-39 647 DATE: February 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for a cervical spine disability is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s cervical spine disability has been manifested by forward flexion to no less than 40 degrees, combined range of motion limited to no less than 264 degrees, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, favorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the cervical spine. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5010, 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1975 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned. In December 2019, the Board remanded this matter for additional development. The Veteran asserts that throughout the appeal period, or from July 15, 2014, that his cervical strain with degenerative arthritis has warranted a rating in excess of 10 percent. See July 2014 claim, June 2015 Notice of Disagreement (NOD), July 2017 Veteran lay statement. Initially, the Board notes that the Veteran’s complaints of pain in his bilateral upper extremities (to include radiculopathy), shoulder pain, muscle soreness, trigeminal neuralgia, and headaches were addressed in an August 2020 rating decision. The August 2020 rating decision granted service connection for a right shoulder degenerative joint disease rated as 20 percent disabling, trigeminal neuralgia rated as 10 percent disabling, and noncompensable tension headaches all effective from March 2, 2020. The Veteran was denied service connection for any bilateral upper extremity neurological disorder, to include radiculopathy, an eye disability, and a left shoulder condition. The Veteran has not perfected an appeal as to any of these matters, thus, the Board does not have jurisdiction to review them, and these portions of his disability picture will not be addressed herein. The Veteran is encouraged to appeal the August 2020 rating decision within one year of its issuance on the appropriate VA Form if he contests the results. 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 percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is currently in receipt of a 10 percent rating for his cervical spine disability, diagnosed as a cervical strain with degenerative arthritis, under DC 5010-5237. 38 C.F.R. §§ 4.27, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A final July 2011 rating decision confirmed the Veteran’s 10 percent rating for his cervical spine disability and on July 15, 2014, the Veteran submitted a claim for increase. Thus, the current appeal period before the Board begins on July 15, 2014, the date VA received the Veteran’s claim for an increased rating, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that 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, as well as 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. See 38 C.F.R. §§ 4.40, 4.45. 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Initially, the Board notes that on February 7, 2021, amended regulations regarding the schedule of rating musculoskeletal disabilities took effect. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 FR 76453, November 30, 2020. Relevant to this Veteran’s service-connected cervical spine strain with degenerative arthritis, the code for traumatic arthritis (selected by the RO), DC 5010, prior to February 7, 2021 instructed that traumatic arthritis be rated as degenerative arthritis under DC 5003, which instructs to rate on the basis of limitation of motion of the joint involved, and also allows for a 20 percent rating for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5010, 5003 (2020). After February 7, 2021, DC 5010 instructs to rate traumatic arthritis as limitation of motion, dislocation, or other specified instability under the affected joint. See 85 FR 76453, supra. DC 5003, DC 5237(cervical strain) and DC 5242 (degenerative arthritis of the spine) had no substantive changes. Id. Accordingly, regarding the Veteran’s cervical spine strain with degenerative arthritis, either before or after February 7, 2021, is best evaluated pursuant to the “General Rating Formula for Diseases and Injuries of the Spine,” unchanged by recent regulatory action. 38 C.F.R. § 4.71a. The cervical spine is considered a group of minor joints and the Veteran is not service-connected for any other arthritic major or minor joint groups rated as 10 percent or less; thus DC 5010 is not for application. 38 C.F.R. §§ 4.25, 4.45. Under the General Rating Formula, as relevant here, a 20 percent rating is warranted when forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Throughout the appeal period, the Veteran submitted to VA examinations in December 2014 and March 2020. At the December 2014 VA examination, the Veteran denied experiencing flare-ups; however, he did report experiencing a decreased range of motion, pain, and weakness with heavy lifting, pushing, or pulling. As the December 2014 VA examiner failed to address how pain, weakness, fatigability or incoordination would affect or limit the Veteran’s range of motion on repeated use over time, it is inadequate. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). Despite this inadequacy regarding range of motion, the Board notes the December 2014 VA examiner objectively identified slight non-guarding tenderness to the Veteran’s cervical paraspinous process and bilateral trapezius with audible crepitus. Initial range of motion testing demonstrated the Veteran’s forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation were normal per 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) and Plate V. The Veteran did not demonstrate guarding or muscle spasm and no additional factors were found to contribute to functional loss. The Veteran demonstrated normal strength, normal reflexes, and normal sensation along the bilateral upper extremities. There was no atrophy of muscle, ankylosis, radiculopathy, or any other neurologic abnormality detected. Degenerative arthritis of the cervical spine was identified on x-ray. The March 2020 VA examiner diagnosed cervical strain with degenerative arthritis. The Veteran reported experiencing flare-ups that presented as increasing pain with overhead reaching, though he did not report any additional loss in range of motion. Initial range of motion testing demonstrated flexion limited to 40 degrees, extension limited to 40 degrees, right and left lateral flexion were limited to 35 degrees, and right and left lateral rotation limited to 60 degrees each. The combined range of motion of the cervical spine was 270 degrees at the March 2020 VA examination. The examiner noted objective evidence of painful motion in lateral flexion resulting in functional loss in the form of reduced range of motion. The Veteran’s posterior borders of the sternocleidomastoid were tender to palpation and were noted as guarding or muscle spasms that were not significant enough to result in abnormal gait or abnormal spinal contour. There was no additional loss in range of motion on repetitive use testing, repeated use over time, or during flare-ups although the Veteran confirmed increased pain. The Veteran demonstrated normal strength, normal reflexes, and normal sensory along the bilateral upper extremities. The March 2020 examiner noted that there was no evidence of muscle atrophy, radiculopathy, ankylosis, or any other neurologic abnormality. Indeed, the Veteran reported that he was not experiencing any pain or other complaints in his arms or the muscles of his arms. See March 2020 VA examination report. In addition to the VA examinations, the Veteran also submitted private treatment records in support of his claim, to include physical therapy treatment records from July and August 2014. At a July 2014 physical therapy session, the Veteran’s cervical spine range of motion was recorded both before and after being administered physical therapy. Pre-therapy, the Veteran’s flexion was limited to 53 degrees, extension limited to 44 degrees, left lateral flexion limited to 24 degrees, right lateral flexion limited to 18 degrees, left lateral rotation limited to 65 degrees and right lateral rotation is limited to 60 degrees. The combined range of motion of the cervical spine was 264 degrees. Post-physical therapy, the Veteran’s flexion was limited to 53 degrees, extension limited to 44 degrees, left lateral flexion limited to 24 degrees, right lateral flexion limited to 25 degrees, left and right lateral rotation limited to 70 degrees. The combined range of motion of the cervical spine increased to 286 degrees. Consistent pre-therapy measurements were recorded in August 2014 prior to undergoing physical therapy. Considering the Veteran’s contentions in light of the evidence of record and the applicable law, the orthopedic manifestations of the Veteran’s cervical spine disability do not more nearly approximate that contemplated by a 20 percent rating or higher at any time during the period on appeal. The examination reports have consistently noted a range of motion measurement of flexion to no less than 40 degrees (a 10 percent rating contemplates no greater than 40 degrees), which is noncompensable, and combined range of motion limited to 264 degrees at its worst, which precisely corresponds to a 10 percent rating. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine. While there has been evidence of muscle spasm and guarding, it did not result in abnormal gait or spinal contour. Further, there has been no evidence of radiculopathy, arthritis, ankylosis, or intervertebral disc syndrome throughout the period on appeal. Although the December 2014 VA examiner did not comply with Sharp, the range of motion and other examination findings are valid. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight”; “it may be given some weight based upon the amount of information and analysis it contains”). Moreover, while the Veteran has competently indicated that recurrent chronic pain limits his functional ability and contributed to flare-ups, such pain has not contributed additional limitation of motion, including on passive range of motion and in non-weightbearing, such that the symptoms would more nearly approximate forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or combined range of motion 170 degrees or less warranting a 20 percent rating under the general rating formula. For the foregoing reasons, a disability rating higher than 10 percent for the Veteran’s cervical spine disability is not warranted. As 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. § 4.3. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.