Citation Nr: 21011233 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-49 969A DATE: March 1, 2021 ORDER Entitlement to service connection for a lower back disability is granted. Prior to March 29, 2018, a disability rating in excess of 20 percent for cervical spine degenerative arthritis with spondylolisthesis and intervertebral disc syndrome (cervical spine disability), is denied. From March 29, 2018 to April 1, 2019, a 30 percent rating, but no higher, for the Veteran’s cervical spine disability is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s lower back disability is related to his active duty service. 2. Prior to March 29, 2018, the Veteran’s cervical spine disability was not manifested by forward flexion limited to 15 degrees or less, ankylosis, or incapacitating episodes. 3. From March 29, 2018, the Veteran’s cervical spine disability was manifested by forward flexion to 15 degrees, without evidence of unfavorable ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a lower back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 20 percent prior to March 29, 2018 for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 3. Resolving reasonable doubt in the Veteran’s favor, from March 29, 2018, the criteria for a 30 percent rating, but no higher, for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to April 1979. In a September 2019 decision, the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for entitlement to service connection for a lower back disability and a rating in excess of 20 percent for his service-connected cervical spine disability prior to April 1, 2019. The Veteran timely appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a joint motion to remand (JMR) wherein the Court vacated the September 2019 Board decision as it pertained to service connection for a lower back disability and the severity of his cervical spine disability prior to April 1, 2019, and remanded these matters to the Board for readjudication consistent with the JMR. 1. Entitlement to service connect for a lower back disability The Veteran contends that his current lower back disability is related to an in-service parachute jump in 1973. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A September 1973 service treatment record (STR) shows that the Veteran had a jump injury at Fort Bragg, resulting in a cervical strain and a sacroiliac joint strain; a December 1973 STR notes an active lumbar strain. STRs dated in February 1974 reflect continuous low back pain and a November 1978 STR show that Veteran sustained a back injury from playing football. The Veteran’s February 1979 separation examination notes his cervical strain injury. In April 1979, the Veteran sought treatment for lower back pain, which had lasted for several months. Post-service, an August 1983 private radiology report revealed minimal degenerative disease of the lumbar spine. More recently, an October 2017 VA examination report noted a diagnosis of degenerative arthritis of the lumbar spine. In addition to the documented STRs, the Board notes that the Veteran is competent to report continuous low back pain during and since service, and that he is credible in his assertions. Moreover, the medical evidence also shows continuous low back symptoms since service. This lay and medical evidence is sufficient to provide a nexus between his current low back condition and the in-service symptoms. The Board acknowledges the October 2017 VA negative etiology opinion. However, the opinion was based on factually inaccurate statements, and is thus afforded no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (providing that a medical opinion based on inaccurate factual premise may properly be rejected as non-probative). The evidence is thus at least evenly balanced as to whether the Veteran’s currently diagnosed lower back disability is related to his in-service lower back pain. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Increased rating for cervical spine disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, in the September 2019 Board decision, the Veteran was denied entitlement to a rating in excess of 20 percent for his service-connected cervical spine disability prior to April 1, 2019. The Veteran contended that his disability was worse in severity prior to that date, and the Court directed the Board to address the positive evidence of record consistent with its JMR. Currently, the Veteran’s cervical spine disability is rated 10 percent disabling from June 23, 1983, 20 percent disabling from May 9, 1984, and 30 percent disabling from April 1, 2019. Consistent with the Court JMR, the Veteran expressly waived his appeal as to the parts of the September 2019 Board decision that denied entitlement to (1) a rating in excess of 30 percent beginning April 1, 2019, for a cervical spine disability; (2) a rating for radiculopathy of the left upper extremity in excess of 20 percent prior to April 1, 2019, and in excess of 30 percent thereafter; and (3) a rating for radiculopathy of the right upper extremity in excess of 40 percent prior to April 1, 2019, and in excess of 50 percent thereafter. Thus, the Board will limit its analysis of the increased rating claim to the evidence of record prior to April 1, 2019. 38 C.F.R. § 4.71a and DC 5243 provide ratings pursuant to the General Rating Formula or Formula for Rating IVDS Based on Incapacitating Episodes. For cervical spine disability, the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, provides the following disability ratings: 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. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. A maximum, 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Note 2 provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 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. Each range of motion measurement is to be rounded to the nearest five degrees. The alternative rating for IVDS based on incapacitating episodes provides the following ratings: A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past twelve months. A 20 percent rating is warranted for 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 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 incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The definition of the term “incapacitating episodes” that appears in the regulation requires that the bed rest be prescribed by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Turning to the relevant evidence of record prior to April 1, 2019, the report of the December 2015 VA examination notes the Veteran’s diagnosed degenerative disc disease (DDD) of cervical spine, degenerative joint disease (DJD) of cervical spine and intervertebral disc syndrome (IVDS). The Veteran reported flare-ups of the cervical spine disorder with increased neck and arm pain with coughing or sneezing. The Veteran’s initial range of motion of his cervical spine was forward flexion to 25 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees each and right and left rotation to 30 degrees each. The Veteran reported pain with forward flexion, extension, and lateral flexion in each direction. There was pain and lack of endurance that caused functional loss. There was no evidence of pain on weight bearing. There was evidence of tenderness or pain on palpation over the mid and lower posterior cervical spine. The examiner indicated that repetitive use testing was impractical due to the Veteran’s limited range of motion. However, the examiner indicated that on repeated use over time and during flare-ups, increased pain would not result in any additional limitation of range of motion. There was localized tenderness, but no muscle spasm noted. There was no ankylosis. Despite evidence of IVDS, there were no signs or symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The report of the October 2017 VA examination noted diagnoses of cervical strain, degenerative arthritis of the spine and spondylolisthesis. The Veteran reported flare-ups in that, while he had constant pain, if he overused the neck it would aggravate the pain that would last for one to two days. Range of motion testing revealed forward flexion to 35 degrees, extension to 35 degrees, right and left lateral flexion to 35 degrees, and right and left rotation to 70 degrees. Pain was noted in all planes of motion. There was evidence of pain on weight bearing and moderate tenderness on palpation of the joint. There was also pain with non-weight bearing. The Veteran was able to perform repetitive use testing, without additional limitation of motion. The examination was not conducted after repeated use over time or during a flare-up, but the examiner noted that pain, weakness, lack of endurance, and fatigue significantly limited the Veteran’s functional ability, with range of motion further reduced to 25 degrees of forward flexion, 25 degrees of extension, 25 degrees each of right and left lateral flexion, and 65 degrees each of right and left lateral rotation. There was guarding and muscle spasm resulting in abnormal gait or abnormal spine contour. There was no ankylosis of the spine and no evidence of IVDS of the cervical spine. A March 2018 VA physical therapy treatment plan noted the Veteran’s loss of cervical lordosis. Range of motion testing on his cervical spine revealed forward flexion limited to 15 degrees, extension limited to 22.5 degrees, and right rotation to 40 degrees and left rotation to 35 degrees. After a thorough review of the evidence of record, the Board finds that prior to March 29, 2018, a rating in excess of 20 percent is not warranted. The Board acknowledges that the December 2015 and October 2017 VA examiners did not indicate at what degree pain began during initial range of motion testing. However, the December 2015 VA examiner indicated that on repeated use over time and during flare-ups, increased pain would not result in any additional limitation of range of motion. Furthermore, the October 2017 VA examination report reflects that pain after repeated use and during a flare-up would only reduce the Veteran’s forward flexion to 25 degrees of motion. Thus, even though these examination reports do not reflect at what degree pain began, it does not appear that pain resulted in any additional functional loss or, if pain did begin in a lesser range of motion, it did not result in functional loss such that the Veteran’s cervical spine disability would be more closely approximated by limitation of forward flexion to 15 degrees or less, the criteria required for an increased 30 percent evaluation. The Board, therefore, finds these examination reports are sufficient to assign a disability rating in this instance. From March 29, 2018, the Board finds that a disability rating of 30 percent, but no higher, for the Veteran’s service-connected cervical spine disability is warranted. The evidence of record, specifically include the March 2018 VA physical therapy treatment plan, reflect forward flexion of the cervical spine to 15 degrees. A rating in excess of 30 percent, however, is not warranted, as there is no evidence of unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. The Board has also considered the alternative DC 5243 rating criteria based upon incapacitating episodes. Although there was evidence of IVDS, the record does not reflect that the Veteran required any physician-prescribed bed rest at any point during the appeal period prior to April 1, 2019. The absence of any physician directed bed rest report in ongoing clinical records where it would be expected to be found weighs heavily against a finding of physician directed bed rest for cervical spine pain management. Molitor v. Shulkin, 28 Vet. App. 397, 410 (2017) (“The absence of evidence only tends to prove the nonexistence of a fact if the fact would ordinarily have been recorded”). Finally, with respect to Note 1 of the General Rating Formula, the Board has considered whether any separate rating(s) for objective neurological abnormalities associated with his cervical spine disability. Here, the Veteran was previously awarded separate disability ratings for radiculopathy of the right and left upper extremities; however, as the Veteran did not appeal these assigned ratings, no such rating is at issue in connection with the current claim. Moreover, there is no medical evidence of any other separately ratable neurological manifestation(s) of cervical spine disability. Hence, this provision provides no basis for any higher or additional rating. In sum, the Board finds that a disability rating in excess of 20 percent is not warranted prior to March 29, 2018 for the Veteran’s service-connected cervical spine degenerative arthritis with spondylolisthesis and IVDS. However, from March 29, 2018, a disability rating of 30 percent, but no higher, is warranted. As to the Veteran’s contentions that a disability rating in excess of 20 percent prior to March 29, 2018, and in excess of 30 percent from March 29, 2018 to April 1, 2019, is warranted, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.