Citation Nr: 21008696 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-32 426 DATE: February 17, 2021 ORDER An initial rating of 30 percent, but no higher, for a cervical spine disability prior to January 8, 2018 (excluding a period of temporary total evaluation from May 26, 2016 to June 20, 2016) is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his cervical spine disability resulted in limitation of forward flexion at 15 degrees or less prior to January 8, 2018. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for a cervical spine disability prior to January 8, 2018 (excluding a period of temporary total evaluation from May 26, 2016 to June 20, 2016) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1979 to May 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously denied by the Board in a January 2019 decision. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court) in January 2019. In a January 2019 joint motion for partial remand (JMPR) the parties only appealed the Board’s denial of an initial rating in excess of 20 percent prior to January 8, 2018. The parties agreed that the Board failed to provide adequate reasons and bases for its denial of a higher rating. Based on the JMPR, this matter was remanded in June 2020 to obtain a retrospective medical opinion regarding the severity of his cervical spine disability prior to January 8, 2018. In an October 2020 supplemental statement of the case (SSOC), the RO continued the previous denial for an initial rating in excess of 20 percent for his cervical spine disability. This matter is again before the Board for adjudication. Increased Ratings 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. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). Cervical Spine The Veteran seeks an initial rating in excess of 20 percent for his cervical spine disability. No specific assertions have been made by the Veteran. The Veteran’s cervical spine is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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 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 warranted 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 warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion (ROM) testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Upon careful review of the claims file, the Board finds that the Veteran is entitled to an initial rating of 30 percent but no higher for his cervical spine disability prior to January 8, 2019. In a February 2014 VA examination, the Veteran complained of constant pain in his neck and that he took Motrin PRN for pain. He did not report any flare-ups. Upon examination, his ROM for forward flexion was limited at 30 degrees with objective evidence of pain at 30 degrees. Although there was no additional loss in ROM following repetitive use testing, his limitation in movement and pain on movement caused functional loss or functional impairment of the cervical spine. Further, the VA examiner noted a diagnosis of IVDS but it did not result in any incapacitating episodes in the past 12 months. There were no findings of muscle spasm, abnormal spinal contour, or guarding. Moreover, there was no findings of muscle atrophy or ankylosis of the cervical spine. The Veteran reported back pain in a January 2016 social security administration (SSA) record, but a review of his musculoskeletal system was negative for stiffness in joint, neck stiffness, or joint swelling. Of note, the Veteran underwent a second surgery in May 2016 to remove the hardware placed in his cervical spine from his previous surgery in 2007. Subsequently, in an October 2016 private treatment record, a private examiner stated that the Veteran’s cervical spine had worsened significantly since his last rating decision. Although the private examiner noted additional diagnosis of his cervical spine disability, the private examiner did not provide any ROM measurements. As such, it was unclear how severe the Veteran’s cervical spine disability was at the time of the October 2016 private examination. Accordingly, pursuant to the September 2019 JMPR, an August 2020 retrospective medical opinion was obtained regarding whether there was any increasing functional impairment of the cervical spine prior to January 8, 2018. Additionally, the VA examiner was requested to provide a retrospective opinion as to whether the functional impairment of the cervical spine more nearly approximates forward flexion to 15 degrees or less. Upon review of the Veteran’s claims file, the August 2020 VA examiner stated that based on his ROMs reported on previous evaluations, it appeared that he maintained or had slightly improved his ROM in all modalities. The VA examiner further stated that it was reasonable to assume that the Veteran’s ROM of his neck, prior to January 8, 2018, is at least as good as the range of motion findings noted on exam on January 8, 2018. (The Veteran’s January 2018 VA examination showed his forward flexion of the cervical spine was limited at 10 degrees with pain beginning at 10 degrees. ) In a subsequent October 2020 VA addendum opinion, the August 2020 VA examiner stated that it would appear that there was an increase in functional impairment due to decrease in range of motion, particularly with forward flexion. In this regard, the VA examiner noted that the Veteran’s current forward flexion was limited to five degrees and further stated that it does not appear to support favorable ankylosis of the entire cervical spine. Based on the evidence, the Board finds that the Veteran’s cervical spine disability manifested in limitation of forward flexion of 15 degrees prior to January 8, 2018. Although, the February 2014 VA examination indicated that forward flexion of the cervical spine was only limited to 30 degrees, the second cervical spine surgery in May 2016 and the October 2016 private treatment record indicated a worsening of his condition. While, no ROM measurement was provided in the October 2016 private examination, the August 2020 VA examiner reconciled the lack of the ROM for the cervical spine stating that the Veteran’s ROM for forward flexion of the spine was likely limited at 10 degrees for the period prior to January 8, 2018. The Board has considered the Veteran’s lay statements and reports of neck pain and the medical evidence and finds them credible. Moreover, the August 2020 and October 2020 VA retrospective opinion in addressing any functional impairment and ROM prior to January 8, 2018 is probative as it was based upon a review of the Veteran’s claims file and included proper description of the functional effects of the disability. Thus, in resolving all doubts in favor of the Veteran, the Board finds that the Veteran is entitled to an initial rating of 30 percent, but no higher, prior to January 8, 2018, with exception of the temporary total disability rating from May 26, 2016 to June 20, 2016. The Board has further considered whether he is entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. However, the February 2014 VA examination fails to show that the Veteran has any diagnosis of ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Notably, the October 2020 VA addendum opinion indicates that there is no evidence supporting favorable ankylosis of the entire cervical spine. Although the Veteran’s ROM for forward flexion is limited, there is no evidence indicating that his cervical spine is fixed in extension or flexion resulting in the symptoms noted in Note 5 of the General Rating Formula for Disease and Injuries of the Spine. As such, the Board finds that an initial rating of 40 percent and 100 percent is not warranted. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for his cervical spine disability based on rating criteria for evaluating spine disabilities on the basis of incapacitating episodes. Although he is diagnosed with IVDS, the February 2014 VA examiner noted that he was not prescribed bed rest in the past 12 months. Aside from the Veteran’s second surgery in May 2016, further review of the medical evidence does not demonstrate any evidence of prescribed bedrest. Absent any evidence to the contrary, the Board finds that he is not entitled to an initial rating of 40 percent or higher under the rating for IVDS based on incapacitating episodes. (Continued on the next page)   For the foregoing reasons, the Board resolves all reasonable doubt in favor of the Veteran’s and finds that he is entitled to an initial rating of 30 percent but no higher for his cervical spine disability prior to January 8, 2018. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.