Citation Nr: 21011433 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-29 702 DATE: March 1, 2021 ORDER A rating in excess of 20 percent for degenerative arthritis of the cervical spine is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s degenerative arthritis of the cervical spine was manifested by forward flexion greater than 15 degrees and the Veteran was not shown to have intervertebral disc syndrome (IVDS) or associated nerve impairment, or ankylosis. 2. The preponderance of the evidence of record does not show that the Veteran has been rendered unable to obtain or maintain substantially gainful employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from June 1967 to July 1969, and in the Coast Guard from February 2003 to October 2003, February 2004 to August 2004, January 2006 to December 2006, and January 2007 to May 2008. The Veteran presented testimony before a Veterans law Judge in June 2014. A transcript of this hearing is associated with the record. The Veterans Law Judge who conducted the hearing has since retired. In July 2017 correspondence, the Veteran indicated that he did not wish to appear at another Board hearing. Thus, the Board will proceed with adjudication of the Veteran’s claim. In 2018 and 2020, the Board remanded the Veteran’s claim for additional development which has been completed. 1. Rating in excess of 20 percent for degenerative arthritis of the cervical spine The Veteran is service connected for osteoarthritis of the cervical spine assigned a 20 percent rating under Diagnostic Code (DC) 5242. 38 C.F.R. § 4.71a, DC 5242. DC 5242 provides ratings pursuant to the General Rating Formula or Formula for Rating IVDS Based on Incapacitating Episodes. Id. 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 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. 38 C.F.R. § 4.71a, DC 5242. 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. 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 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). The Veteran contends higher initial ratings are warranted for his service-connected cervical spine disability than the currently assigned a disability rating of 20 percent thereafter under DC 5242. 38 C.F.R. § 4.71a, DC 5242. Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013 where a diagnosis of degenerative changes of the cervical spine with radiculopathy of the left upper extremity was confirmed. The Veteran reported experiencing flare-ups that impacted the function of the cervical spine. He stated that “there are times when he has difficulty doing anything with his neck such as driving a car.” A range of motion testing revealed forward flexion to 25 degrees with objective evidence of painful motion at 20 degrees. He was able to perform repetitive-use testing with three repetitions at 25 degrees of forward flexion. There was no additional limitation in range of motion of the cervical spine following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the cervical spine including less movement than normal and pain on movement. There was moderate localized tenderness on palpation of the muscles in the posterior neck. There was no evidence of guarding or muscle spasm of the cervical spine. Muscle strength testing was normal without muscle atrophy. Reflex and sensory examinations were normal. The VA examiner determined the Veteran did not have IVDS. Finally, the VA examiner stated that the Veteran’s cervical spine disability impacted his ability to work as he was unable to look up or down and turn side to side which interfered with his ability to work. According to a June 2015 VA examination report, the Veteran stated that over the previous few years it had become difficult to turn his neck well enough to look behind him while driving and felt he was no longer safe to drive for work and decided to retire two years earlier. He stated he did not report flare-ups. Range of motion testing revealed 20 degrees forward flexion with painful motion. The Veteran was able to perform repetitive-use testing with three repetition with post-test forward flexion at 20 degrees. The Veteran did not have additional limitation in range of motion of the cervical spine following repetitive-use testing but did have less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Veteran had localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. He also had severe guarding or muscle spasms, but did not result in abnormal gait or spinal contour. Muscle strength testing was normal and without muscle atrophy. The sensory and reflex examinations were also normal. The Veteran did not have IVDS of the cervical spine. The VA examiner determined that the Veteran was unable to turn his neck backwards which impaired his ability to drive safely for work and he avoided holding heavy items in the left hand due to his paresthesias in the 4th and 5th fingers. The Veteran was afforded a VA examination in December 2018 where his symptoms included daily, intermittent neck pain, described as a 5 on a scale of 10, with tingling and numbness down the left shoulder to the little finger. The Veteran was not undergoing any treatment at this point. The Veteran reported flare-ups of the cervical spine described as severe pain that occurred about once a week, a 10 out of 10 in severity, making it hard to turn his neck. He stated it lasted for 2 to 3 hours. The Veteran also had difficulty turning his neck. Range of motion testing revealed forward flexion at 35 degrees with pain. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. The Veteran did not have localized tenderness, guarding, or muscle spasm of the cervical spine. Muscle strength testing was normal and there was no evidence of muscle atrophy. The reflex and sensory examinations were normal. There was no evidence of ankylosis or IVDS. The Veteran’s cervical spine condition impacted his ability to work as he had difficulty turning his neck when driving with left hand numbness and tingling making it difficult to hold items. He was retired but had lost less than one week in the last 12 months. According to an addendum to the December 2018 VA examination report, the VA examiner stated, “[f]ollowing further review of the Veteran’s records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion when it comes to repetitive use.” Furthermore, the VA examiner noted “[a]fter [a] review of the Veteran’s records including the order request, [disabilities benefits questionnaire], physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion during a flare up.” Finally, the Veteran underwent a VA examination in October 2020, the Veteran reported the pain in his neck was dull with constant discomfort, occurring most days of the week and he had a hard time turning his neck due to the pain it caused. He stated he was not receiving treatment for his neck disability. The Veteran did not report flare-ups of the cervical spine. He stated he had difficulty driving because it “hurts to turn my neck and look behind me. My range of motion in my neck is limited.” Range of motion testing revealed forward flexion of 30 degrees with pain. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions where forward flexion was at 25 degrees. The Veteran was not examined immediately after repetitive use over time. Pain limited the functional ability with repeated use over a period of time where the range of motion was at 25 degrees. The examination was not conducted during a flare-up and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The Veteran did not have localized tenderness, guarding, or muscle spasm of the cervical spine. Muscle strength testing was normal and there was no evidence of muscle atrophy. The reflex and sensory examinations were normal. There was no evidence of ankylosis or IVDS. The Veteran’s cervical spine condition impacted his ability to work as a result of limitation of motion. He was retired but lost less than one week in the last 12 months. Furthermore, the October 2020 VA examiner determined that passive range of motion was “not performed as it was not feasible to do this in a safe and reasonable manner.” The non-weight bearing assessment was not applicable. The Board finds that a rating in excess of 20 percent for degenerative arthritis of the cervical spine is not warranted. 38 C.F.R. § 4.71a, DC 5242. In order to obtain a rating in excess of 20 percent, the evidence must indicate forward flexion of the cervical spine is functionally limited to 15 degrees or less; or that there is favorable ankylosis of the entire cervical spine. Here, the Veteran has consistently demonstrated forward flexion in his cervical spine beyond 15 degrees. The Board has also considered whether higher ratings for the Veteran’s cervical spine disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain during ROM testing was noted on the VA examination reports. However, limitation of flexion still measured well in excess of 15 degrees, even after repetitive motion testing, and there has been no suggestions that flexion is so limited during a period of flare-ups. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given the reports of flare-ups during the March 2013 and December 2018 examinations. It is notable that the Veteran did not report experiencing flare-ups during the June 2015 and October 2020 examinations. The reported flare-up is not shown to additionally limit function in a quantifiable way. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran’s functional ability during a flare-up or after repeated use over time. The record is reasonably clear that the Veteran experienced motion loss during flare-ups, described as limited movement. However, the medical and lay statements do not indicate that the flare-ups are so severe as to more nearly approximate the 30 percent rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242; Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell, 25 Vet. App. at 44; Sharp, 29 Vet. App. at 33. The VA examination reports indicate that the Veteran has greater movement than the motion loss contemplated for the 30 percent rating criteria for DC 5242. The Veteran does not specifically identify more motion loss suggestive of cervical spine range of motion flexion to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5242. For these reasons, a rating in excess of 20 percent for degenerative changes of the cervical spine is denied. The Board has considered the alternative DC 5243 rating criteria based upon incapacitating episodes. In this case, at least four weeks of bedrest is required during a past 12-month period is required for a rating in excess of 20 percent. The objective evidence of the record does not support the Veteran experienced incapacitating episodes as a result of his cervical spine disorder, and there is no suggestion that bed rest has been prescribed. For the foregoing reasons, a rating in excess of 20 percent for degenerative arthritis of the cervical spine must be denied. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. TDIU Total disability ratings for compensation based upon individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a) (2017). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. Therefore, Rating Boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16 (b). Here, during the period of appeal for the Veteran’s claim for TDIU, he was service connected for posttraumatic stress disorder at 30 percent, effective May 16, 2008; degenerative changes of the cervical spine at a 20 percent, effective May 16, 2008; radiculopathy of the left upper extremity at 10 percent, effective April 2, 2009, and 20 percent from June 16, 2015; tinnitus at 10 percent, effective May 16, 2008; and bilateral hearing loss at 10 percent, effective May 16, 2008, and a noncompensable rating from January 1, 2011. The combined evaluation was 60 percent from May 16, 2008. This does not meet the threshold requirement for a schedular TDIU. Nevertheless, the Board will consider whether the facts of the Veteran’s case warrant a referral for extraschedular consideration for a TDIU. The Board notes that it is unclear from the record when the Veteran retired. According to the June 2015 VA examination for the cervical spine, the Veteran stated he retired in 2013 when it became unsafe for him to continue driving due to his neck disability. However, in October 2020, the Veteran stated he retired in 2008. Nevertheless, according to VA Individual Unemployment Statements conducted in 2020, it was determined that none of the Veteran’s service-connected disabilities rendered him unemployable. The VA examiner determined that at the Veteran was able to perform “light work” as a result of his service-connected cervical spine disability and radiculopathy of the left upper extremity, no job related difficulties as a result of his service-connected PTSD, and with proper hearing and/or adaptive devices, there were no work restrictions for his hearing loss or tinnitus. In addition, a review of the Veteran’s VA treatment records overall does not support the contention that his service-connected disabilities prevent his ability to secure a substantially gainful employment. (Continued on the next page)   Therefore, the weight of the evidence is against establishing the Veteran was unable to secure substantially gainful employment solely due to his service-connected disability. Thus, a referral for an extraschedular TDIU is not warranted for the entire period on appeal. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.