Citation Nr: 21009978 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-39 168 DATE: February 23, 2021 ORDER Entitlement to an initial disability evaluation in excess of 10 percent and a disability evaluation in excess of 30 percent from March 27, 2019, forward, for service-connected cervical spine degenerative disc disease with Intervertebral Disc Syndrome (IVDS) is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT From August 4, 2010, to March 27, 2019, the Veteran’s cervical spine degenerative disc disease manifested, at worst, by combined range of motion of the cervical spine to 290 degrees. From March 27, 2019, forward, the Veteran’s cervical spine degenerative disc disease did not manifest by unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for initial disability evaluation in excess of 10 percent and in excess of a disability evaluation in excess of 30 percent from March 27, 2019, forward, for service-connected cervical spine degenerative disc disease with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1998. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Winston-Salem, North Carolina, and Salt Lake City, Utah, respectively. The Board previously remanded this matter in May 2018 and July 2020. Entitlement to an initial disability evaluation in excess of 10 percent and a disability evaluation in excess of 30 percent from March 27, 2019, forward, for service-connected cervical spine degenerative disc disease with IVDS is denied. 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 by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for separate ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s cervical spine degenerative disc disease with IVDS is rated in accordance with DC 5243. The General Rating Formula for Disease and Injuries of the Spine provides a 10 percent disability rating for combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or 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 disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or 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 disability 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 evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These criteria can be met 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. Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under the Formula Rating IVDS set forth in DC 5243, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, DC 5243. 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. See 38 C.F.R. § 4.71a, Note (1). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and 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). Pain which does not rise to the level of functional loss 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). Pursuant to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form or arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In order to receive a higher rating prior to March 27, 2019, the Veteran’s neck disability must produce forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or 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; or IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks over a 12-month period. From March 27, 2019, forward, in order to receive a higher rating, the Veteran’s neck disability must produce unfavorable ankylosis of the entire cervical spine or IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks over a 12-month period. As discussed below, the Board finds that his symptoms do not meet these criteria and therefore higher evaluations are not warranted. When the Veteran was first examined regarding his cervical spine condition in December 2013, he reported experiencing cervical spine pain and taking ibuprofen once per day. He denied having any flare-ups of the neck. Initially, his cervical spine’s forward flexion measured to 35 degrees and his combined range of motion of the cervical spine measured to 290 degrees. Although the Veteran was noted to have pain on movement, no pain on palpation to the associated joints or soft tissues of the cervical spine was found. After performing repetitive use testing, no additional change in the Veteran’s range of motion was found. He did not exhibit guarding or muscle spasm of the cervical spine resulting in abnormal gait or abnormal spinal contour. His muscle strength measured normal and his reflex and sensory examinations yielded normal results. No ankylosis of the cervical spine was observed. Even though the Veteran was noted to have IVDS, he did not experience incapacitating episodes during the previous 12 months. The December 2013 examiner noted that at that time the Veteran did not report any flare-ups of the cervical spine; however, the examiner estimated that “the Veteran would have significantly limited functional ability of the cervical spine due to pain when the joint is used repeatedly over a period of time regardless of whether he is in a flare-up of not.” Additionally, the examiner concluded that the Veteran’s cervical spine condition impacted his ability to work. Specifically, he would take frequent breaks at work due to neck pain while working as an appliance installer. Although the Veteran was examined in March 2019 for his cervical spine condition, the Board previously found this examination to be inadequate, as the examination did not comply with the requirements of Sharp v. Shulkin and Correia v. McDonald. See July 2020 Board Decision; Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Veteran was again examined in September 2020, at which time he reported that both of his shoulders lock and he experienced spasms and severe pain. He also indicated suffering from flare-ups, during which he would experience soreness and increased pain. Initially, the Veteran’s forward flexion of the cervical spine measured to 15 degrees and his combined range of motion measured to 65 degrees. The examiner concluded that the Veteran’s limited range of motion itself contributed to functional loss; specifically, no driving, chores at home, working in the yard, or exercising in the gym. Even though the Veteran exhibited pain on all ranges of motion of the cervical spine, the examiner concluded that this painful motion did not result in functional loss. However, the Veteran showed moderate tenderness or pain on palpation to the perispinal cervical muscles. After repetitive use testing, the Veteran did not exhibit any additional loss of function or range of motion. However, the examiner estimated that, after repeated use over time and during flare ups, pain, fatigability, and weakness would significantly limit functional ability, to include the Veteran’s range of motion. The examiner estimated that, at worst during a flare-up, the Veteran’s forward flexion would measure to 10 degrees and his combined range of motion would measure to 35 degrees. The Veteran was found to have muscle spasm of the neck that did not result in an abnormal gait or abnormal spinal contour but did result in tightness of the cervical muscles. However, the Veteran’s muscle strength, reflexes, and sensory examinations again yielded normal results. The Veteran was found to not have radicular pain or any other signs or symptoms due to radiculopathy. No ankylosis of the cervical spine was observed and the examiner concluded that the Veteran did not have IVDS of the cervical spine though he occasionally uses a cane for support for the neck due to his condition. The examiner also concluded that the Veteran’s cervical spine disability impacts his ability to work. Driving a vehicle or doing computer work were found to be difficult due to problems with the Veteran’s limited range of motion. Although the Veteran was noted to have IVDS of the cervical spine, the Board finds that, because the Veteran’s IVDS has not been noted at any time during the period on appeal to have resulted in incapacitating episodes, the Board finds that the General Rating Formula results in the higher evaluation for the Veteran’s cervical spine condition and will therefore apply to General Rating Formula to his disability. Here, the Board finds that the Veteran’s cervical spine degenerative disc disease with IVDS is properly evaluated with an initial evaluation of 10 percent and an evaluation of 30 percent from March 27, 2019, forward. Though the Veteran has reported pain in his neck, the examination reports of record continuously reflect painful limited range of motion of the cervical spine. Accordingly, the criteria in DeLuca and Mitchell regarding painful motion are encompassed in the Veteran’s compensable disability evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 43. Prior to March 2019, the Veteran’s medical records do not reflect any additional changes in range of motion, muscle strength, muscle guarding, or muscle spasms that would warrant a higher disability evaluation in excess of 10 percent. Furthermore, throughout the period on appeal, there is no evidence of unfavorable ankylosis of the cervical spine. Unfavorable ankylosis is defined as a condition in which the entire cervical 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 of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note (5). The Veteran did not report any of the above-mentioned symptoms and none of his examination reports reflect that his cervical spine resulted in a fixed position in either extension or flexion. Therefore, a current disability evaluation in excess of 30 percent for the Veteran’s cervical spine condition is not warranted. In sum, the Board finds that throughout the period on appeal, there is no indication that the Veteran’s painful motion resulted in functional limitations of unfavorably ankylosed cervical spine or bed rest prescribed by a physician to warrant an initial disability evaluation in excess of 10 percent or a current disability evaluation from March 27, 2019 in excess of 30 percent. The Board finds that a preponderance of the medical evidence establishes that the Veteran has not experienced incapacitating episodes of IVDS, unfavorable ankylosis of the cervical spine, or any objective indication that, prior to March 2019, the Veteran’s range of motion of the cervical spine changed to impact the duration of his initial 10 percent disability evaluation. Therefore, entitlement to an initial disability evaluation higher than 10 percent and from March 27, 2019, forward, to a disability evaluation higher than 30 percent for the Veteran’s cervical spine degenerative disc disease with IVDS is denied. The Board has considered the benefit-of-the-doubt doctrine’s applicability to this matter; however, the preponderance of the evidence weighs against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and therefore entitlement to higher disability evaluations is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. The Board sincerely regrets the additional delay; however, further evidentiary development is necessary before the Veteran’s claim for TDIU can be adjudicated on the merits. As a preliminary matter, the Board notes that the Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) evaluated as 50 percent disabling from April 30, 2010 and 70 percent disabling from December 28, 2019; obstructive sleep apnea associated with PTSD with TBI evaluated as 50 percent disabling from August 28, 2017; radiculopathy of the right upper extremity associated with cervical spine degenerative disc disease with IVDS evaluated as 40 percent disabling from March 27, 2019; migraine headaches evaluated as 30 percent disabling from August 28, 2017; cervical spine degenerative disc disease with IVDS evaluated as 10 percent disabling from August 4, 2010 and 30 percent disabling from March 27, 2019; radiculopathy of the left upper extremity associated with cervical spine degenerative disc disease with IVDS evaluated as 30 percent disabling from March 27, 2019; degenerative arthritis of the left foot evaluated as 20 percent disabling from April 30, 2010; tinnitus evaluated as 10 percent disabling form August 28, 2017; and erectile dysfunction associated with PTSD with TBI evaluated as 0 percent disabling from August 28, 2017. When combined, including the bilateral factor, the Veteran’s disability rating is 60 percent effective April 30, 2010; 90 percent effective August 28, 2017; and 100 percent effective March 27, 2019. Prior to August 28, 2017, the Veteran does not meet the schedular requirements for entitlement to a TDIU; however, his various examination reports reflect that his service-connected disabilities have negatively impacted his ability to work. See 38 C.F.R. § 4.16. VA regulations provide that if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU claim. The Agency of Original Jurisdiction (AOJ) has, thus far, declined to refer the Veteran’s claim to the Director despite probative evidence in the form of various examination reports and Social Security Administration records indicating that the Veteran’s service-connected disabilities negatively impact his ability to obtain and maintain substantially gainful employment. Considering the evidence of record, such evidence raises the possibility that the Veteran could not work due to his service-connected disabilities. The Board also acknowledges that the Veteran is in receipt of a 100 percent combined disability evaluation effective March 27, 2019. See March 2020 Rating Decision. However, the Board notes that a TDIU claim can be granted despite the existence of a combined schedular total rating for the purpose of establishing entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s). In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC. As such, the Board finds that this issue must be readjudicated by the AOJ. The matters are REMANDED for the following action: 1. Refer the claim of entitlement to a TDIU to the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b) for the period prior to March 27, 2019. 2. The AOJ should readjudicate the Veteran’s claim of entitlement to TDIU from March 27, 2019, forward, in accordance with the above-noted regulations and policies. If entitlement to TDIU from March 27, 2019, forward, is denied, the Veteran must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran need not separately appeal this issue, as it is encompassed by the appeal of the ratings assigned to his cervical spine degenerative disc disease with IVDS. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.