Citation Nr: 21009788 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-39 445 DATE: February 23, 2021 ORDER Entitlement to an increased rating of 30 percent, but no higher, for cervical spine fracture (cervical spine disability), is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection and a separate rating for headaches, as an objective neurologic abnormality associated with service-connected cervical spine disability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. REFERRAL At the August 2020 Board hearing the Veteran testified that he experienced a buzzing sound in his ear as a result of his cervical spine disability. Therefore, the issue of entitlement to service connection for tinnitus as a result of the Veteran's service-connected cervical spine disability has been raised by the record but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action, to include sending a standardized claim form to the Veteran. 38 C.F.R. § 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904(b) (continuing to provide for referral of legacy claims). FINDINGS OF FACT 1. The symptoms of the Veteran's cervical spine disability more nearly approximated forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine but not unfavorable ankylosis of the entire cervical spine. 2. The evidence is at least evenly balanced as to whether the Veteran's headaches are associated with the Veteran's service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 30 percent for cervical spine disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5235. 2. The criteria for service connection and a separate rating for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1973. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating greater than 20 percent for cervical spine fracture. In May 2016 the Veteran filed a notice of disagreement (NOD) and in June 2017 the RO issued a statement of the case (SOC). In July 2017 the Veteran filed a substantive appeal (via VA Form 9). By way of history, the RO granted the Veteran service connection for cervical spine fracture in a February 2013 rating decision, rated at 20 percent. He filed a claim for an increased rating in February 2016, asserting worsening symptoms. In August 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A transcript of the hearing is associated with the record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 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). 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. 1. Cervical Spine Disability The Veteran's cervical spine disability is currently rated 20 percent disabling under the General Rating Formula for Diseases and Injuries to the Spine. 38 C.F.R. § 4.71a, DC 5235. 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 20 percent rating is assigned 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 assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 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 38 C.F.R. § 4.71a, General Rating Formula Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. At the August 2020 Board hearing the Veteran testified that if he turns his head to the right he cannot see his shoulder and if he turns it to the left he can see his shoulder but it does not go any further. The Veteran cannot touch his chin down to his chest or look over his head at all. The Veteran also testified that his range of motion (ROM) is much more limited than the measurements taken by the most recent VA examiner as they do not account for the pain his disability causes him. The Veteran also reported that he had difficulty driving and required help when backing out of his driveway. An April 2016 VA examiner noted that the Veteran experienced functional loss due to his cervical spine disability regardless of repetitive use. The Veteran reported that he had difficulty reaching objects over his head. The Veteran did not report any functional loss when: pushing/pulling, bending/twisting, kneeling/squatting/walking, standing/sitting, grasping/gripping, keyboarding, or climbing stairs. The VA examiner noted that the Veteran’s ROM was abnormal or outside of normal range. Forward flexion was limited to 25 degrees, extension limited to 10 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 30 degrees. Ankylosis of the spine was not noted. The Veteran did not report flare-ups and the VA examiner stated that he could not opine as if there would be any additional ROM loss during repeated use over time or during flare-ups. The Board finds that for the entire claim period a 30 percent disability rating is warranted for the Veteran's cervical spine disability. While the Veteran's ROM measurements fall within the criteria for a 20 percent rating, the evidence including the Veteran’s testimony reflects pain on movement and other symptoms in 38 C.F.R. § 4.45(f) that must be considered and result in forward flexion of the cervical spine approximating limitation to 15 degrees or less, the criteria for a 30 percent rating is warranted. However, a rating greater than 30 percent is not warranted at any time during the period on appeal. The Veteran has not exhibited unfavorable ankylosis of the entire cervical spine or the entire spine. The Veteran does not contend he has exhibited unfavorable ankylosis and his symptomatology does not more nearly approximate a rating greater than 30 percent rating under DC 5235. The Board notes that a 30 percent rating is the maximum disability rating for a cervical spine disorder under the General Rating Formula for Diseases and Injuries of the Spine that does not require ankylosis which is not raised by the record. The Board has also considered whether a higher rating is warranted under an alternate diagnostic code. However, the Veteran does not have intervertebral disc syndrome (IVDS) and a higher evaluation under DC 5243 is not warranted. For the foregoing reasons, a 30 percent disability rating, but no higher, is warranted for the Veteran's cervical spine disability for the entire period on appeal. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine, the Board is required to assign separate disability ratings under appropriate diagnostic codes for objective neurological abnormalities associated with a spinal disorder; 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For the following reasons, as the Veteran claims, and the medical evidence reflects, that he has headaches associated with his cervical spine disability, service connection and a separate rating for headaches is warranted. Generally, is possible to have separate and distinct manifestations from the same disorder that permits rating under multiple diagnostic codes, with the critical element in permitting such ratings being 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). The symptomatology for which the Veteran is rated under for his cervical spine disability are based on limited range of motion and painful motion. The Veteran's disability rating for his cervical spine disability does not incorporate the Veteran's symptomatology for his headaches. Note 1 to the General Rating Formula provides that associated objective neurologic abnormalities are to be rated separately under the appropriate diagnostic code. Generally, headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A June 2016 VA physician noted that the Veteran’s headaches were due to the neck pain caused by his cervical spine disability. In this regard, the Board finds that the Veteran's symptomatology meets the criteria for a separate rating for headaches. In granting a separate rating for headaches based on Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board is cognizant that the August 2014 VA examiner found no neurological abnormalities. However, in weighing the VA examiner's opinion with the VA physician’s finding that that the Veteran’s headaches are due to neck pain associated with the Veteran's service-connected cervical spine disability, the evidence it is at least evenly balanced that the Veteran's headaches are an objective neurologic abnormality associated with his cervical spine disability. Thus, affording the Veteran the benefit of the doubt, he is entitled to service connection and a separate rating for headaches. Although a claim for service connection for headaches was not adjudicated by the AOJ, 38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those “complications” in connection with the claim on appeal. Bailey v. Wilkie, __ Vet. App. __, No. 19-2661 (Jan. 6, 2021). Moreover, VA’s duty to maximize benefits requires it to exhaust all schedular alternatives, to include secondary service connection, for rating a disability before the extraschedular analysis is triggered. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2018). Consequently, the grant of service connection and a separate rating for headaches, with the AOJ to implement this grant and assign the initial rating, is warranted. REASONS FOR REMAND Entitlement to TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. At the August 2020 Board hearing the Veteran testified that his cervical spine disability prevented him from working and that he should be entitled to a TDIU. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Currently, the Veteran does not meet the schedular criteria for a TDIU. However, the Board has now increased the Veteran’s cervical spine disability rating and granted a separate rating for headaches. The AOJ should therefore consider the issue of entitlement to a TDIU after implementing the Board's grant of service connection for a low back disability. If the Veteran meets the schedular requirements, the AOJ should readjudicate entitlement to a TDIU on this basis. If the Veteran does not meet the schedular criteria, a TDIU may still be granted even if the Veteran does not meet the schedular standards if the criteria of inability to secure and follow substantially gainful employment are met. 38 C.F.R. § 4.16(b). The Board may not grant this benefit in the first instance. Rather, it must remand the case for referral to the Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." In the present case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. However, as explained above, pursuant to Bowling v. Principi, 15 Vet. App. 1 (2001), the Board does not have the authority to assign an extraschedular TDIU in the first instance and referral to the Director, Compensation Service, for consideration of entitlement to a TDIU is warranted. The matters are REMANDED for the following action: After implementing the Board's grant of an increased, 30 percent rating for cervical spine disability and service connection and a separate rating for headaches, determine whether consideration of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) is warranted. If so, after conducting appropriate development, to include providing the Veteran with the formal TDIU application form, VA Form 21-8940, adjudicate this matter. If not, refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service and adjudicate this matter after it is returned. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.