Citation Nr: 21008777 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-05 856 DATE: February 18, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for cervical spine disability with degenerative joint disease is denied. FINDING OF FACT The Veteran’s cervical spine disability has muscle spasms which do not result in abnormal gait or spinal contour, forward flexion of his cervical spine is greater than 30 degrees, and his combined range of motion is greater than 170 degrees. CONCLUSION OF LAW The criteria for an increased 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, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1992 to September 2012. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision. The claim was remanded by the Board in a January 2019 decision; the Board finds the remand directives have been complied with. In a January 2013 rating decision, the Veteran was granted service connection for a cervical spine disability rated at 0 percent effective October 1, 2012, the date after discharge from service. In a September 2020 rating decision, his rating was increased to 10 percent disabling effective October 1, 2012. As the increase was not a full grant of benefits, the claim remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings 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 the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As the Veteran has continuously pursued his claim since the grant of service connection, the Board will consider the evidence of record as of October 1, 2012. Diagnostic Code 5237 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that the normal range of motion of the cervical spine is to zero (0) to 45 degrees (full range of motion) for flexion, extension, and lateral flexion, and zero (0) to 80 degrees for rotation (full range of motion). 38 C.F.R. § 4.71a, Plate V. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; when the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; when 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 assigned when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; when the combined range of motion of the cervical spine is not greater than 170 degrees; or when there is 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 when forward flexion of the cervical spine is 15 degrees or less, or when there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine and a rating in excess of 40 percent is not available unless ankylosis of the entire spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Alternatively, the Veteran's cervical spine disability may be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes; however, the evidence does not indicate that the Veteran has IVDS. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran has consistently contended that his cervical spine disability warrants a higher rating. In his NOD, he stated he has continuous muscle spasms and localized tenderness that do not result in an abnormal gait or spinal contour. In his Form 9, he explained that he struggles with a bad neck on a daily basis that causes weakness and a lack of endurance. Since discharge from service, his flare-ups occur more often. He specifically contended that the provisions of 38 C.F.R. §§ 4.40 and 4.45 apply and warrant a higher rating. He sleeps with a special pillow, undergoes frequent massage therapy, and must contort his neck to alleviate pressure and tightness daily. In March 2020 correspondence, he stated his neck condition had not changed and is exacerbated by stress, and he manages through exercise, stretching, and rest. The Veteran’s initial rating was based on the findings of an examination conducted while he was still in service in July 2012. He underwent a new VA examination in August 2020. At the time of examination, he endorsed current symptoms of daily pain with a baseline of 7 to 9 out of 10, flaring up to 10 out of 10, stiffness, crepitus, having to “pop his neck” constantly, fatigue with repetitive motion of the neck, and intermittent pain, numbness, and tingling in both arms. Regarding the radicular symptoms, the Veteran became separately service connected for upper extremity radiculopathy in the September 2020 rating decision. The Veteran’s most reduced ranges of motion immediately after repetitive use over time and during flare-ups were as follows: forward flexion and extension to 35 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 50 degrees. His combined range of motion is 200. While the Veteran was not examined during a flare-up or immediately after repetitive use over time, the examiner indicated the examination was medically consistent with the Veteran’s statements regarding functioning loss in those circumstances, and that pain, fatigue, and lack of endurance caused a functional loss with both flare-ups and repeated use over time. Guarding and muscle spasms were indicated but did not result in abnormal gait or spinal contour. There was less movement than normal, but no ankylosis. The examiner found objective evidence of pain in weight-bearing and nonweight-bearing. The ranges of motion were the same during both active and passive range of motion testing. The evidence of record reflects that the Veteran’s cervical spine disability warrants a 10 percent rating, but no higher. The treatment records reflect the diagnosis and treatment for his chronic pain, but they do not provide evidence bearing on an increased rating within the rating criteria. While the Board acknowledges the Veteran’s statements regarding his symptomatology, it must adhere to the rating criteria in assigning disability ratings. Here, the provisions of 38 C.F.R. § 4.40 and § 4.45 have been applied, as the August 2020 examiner accounted for the Veteran’s functional loss caused by pain, fatigue, and lack of endurance in estimating ranges of motion at its most severe.   The Veteran’s claim is denied. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.