Citation Nr: 21011791 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 05-31 047 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied. Entitlement to service connection for headaches to include as secondary to cervical spine disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disability is not manifested by ankylosis or prescribed bed rest. 2. The evidence is in equipoise regarding whether the Veteran's headaches were caused by active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5242 2. The criteria for service connection for headaches have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to December 1986. This matter comes to the Board of Veterans’ Appeals(Board) on appeal from January 2005 and August 2005 rating decisions of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony before the undersigned Veterans Law Judge July 2011. A transcript of this hearing is of record. These claims were previously remanded by the Board in January 2008, January 2012, May 2016, May 2018, and October 2020. 1. Entitlement to a rating in excess of 30 percent for a cervical spine disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The 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 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has 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, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. At 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The Veteran contends that he is entitled to a higher rating for his cervical spine disability. The Veteran’s cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic 5235-5242, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. At Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. At Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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 on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. At Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A December 2004 VA examination report shows that the Veteran was diagnosed with fracture spinous process of the C7 vertebra. The examiner noted that the Veteran did not experience any neurological symptoms associated with the cervical spine disability. Flare ups were not reported. Fatigue and decreased motion were noted as mild. Stiffness and weakness were noted as moderate. Spasms were noted as severe. Pain was noted a moderate and constant. No limitations of walking were assessed. IVDS was diagnosed with no incapacitating episodes. Range of motion of the cervical spine was noted as forward flexion to 12 degrees, extension to 22 degrees, right lateral flexion to 17 degrees; left lateral flexion to 22 degrees; right lateral rotation to 27 degrees, and left lateral rotation to 25 degrees. Additional loss of range of motion on repetitive use due to pain, fatigue, weakness, or land of endurance was not assessed. The examiner noted that the disability impacted occupational activities were decreased mobility, decreased manual dexterity, and pain. The Veteran also reported taking pain medication while working as a welder in a sitting position. Effects on daily activities were noted as moderate for chores, shopping, and recreation. Severe effects were noted on sports. Mild effects for traveling. In a July 2009 VA examination report, the Veteran reported pain in his neck every day and every time he moved his head. The Veteran reported that after separation from service, he worked as a welder and his neck got worse. Bladder or bowel conditions were not assessed. Fatigue, decreased motion, stiffness, spasms, and pain were reported. Flare ups were assessed occurring 2-3 times weekly lasting hours. Alleviating factors were reported as rest, sitting down, or going into a whirlpool. The Veteran also reported that during flare ups he would have to lay down and take medication. No incapacitating episodes were assessed. Cervical spine ankylosis were not assessed. Cervical spine issues were noted as guarding, pain with motion, and tenderness. Muscle spasms or guarding severe enough to caused abnormal gait or abnormal spinal contour were assessed. Range of motion of the cervical spine was noted as forward flexion to 9 degrees, extension to 7 degrees, right lateral flexion to 12 degrees; left lateral flexion to 13 degrees; right lateral rotation to 37 degrees, and left lateral rotation to 25 degrees. Pain was noted during the range of motion testing. Additional loss of range of motion on repetitive use was not assessed. A January 2013 VA examination report shows that the Veteran reported pain and stiffness affecting his neck. The Veteran reported that he would lay down when his neck bothered him. The Veteran self-reported no flares-ups related to his cervical spine disability. Range of motion testing could not be conducted as the Veteran did not move his neck. However, the examiner noted that the Veteran flexed down his neck without objective evidence of pain to put his shirt back on. The examiner also observed that the Veteran turned his head 20 degrees to the right when he reached for his sunglasses without objective evidence of pain. Repetitive use testing could not be conducted. Pain and muscle spasms were not observed regarding the cervical spine. IVDS affecting the cervical spine was assessed with no incapacitating episodes were assessed. The examiner noted that on muscle strength testing the Veteran would give way before the pressure was applied and with encouragement was able to conduct the test. The examiner noted that the Veteran did not move his neck for formal range of motion testing but was observed bending his neck forward 40 degrees when pulling his shirt on and turning head 20 degrees to get his sunglasses. A February 2017 VA examination report shows that the Veteran did not report any flare ups from the cervical spine disability but did report functional loss. He reported that he could not do things he used to do, difficult to pick up and move things. He also reported that he could not work as a journey man welder. Ice fishing, hunting, driving long distances all bothered him. Range of motion of the cervical spine was noted as forward flexion to 40 degrees, extension to 25 degrees, right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. The examiner noted that the abnormal range of motion contributed to functional impairment such as interfering with looking up and down, and side to side, and greatly limiting ability to drive. Pain with weight bearing was noted with neck tenderness. Repetitive use testing did not result in additional loss of range of motion. Pain was not noted during testing or on weight bearing. Tenderness of the mid cervical spine was noted. Repetitive use testing was conducted with no additional loss of function. The examiner noted that the Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability or incoordination did not significantly limit functional ability. Ankylosis of the cervical spine was not diagnosed. The examiner noted that the IVDS did not result in incapacitating episodes. Functional impact was noted as the Veteran had to avoid overhead work and no commercial driving. Passive range of motion could not be conducted as it was not medically appropriate. An August 2019 VA examination report shows that the Veteran reported functional impairment as he felt he could not move his neck as he used to due to pain. Posterior neck pain was noted as constant. Flare-ups were reported as major headaches. Range of motion of the cervical spine was noted as forward flexion to 5 degrees, extension to 5 degrees, right lateral flexion to 5 degrees; left lateral flexion to 5 degrees; right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted that the abnormal range of motion was due to suboptimal effort. Pain was not noted on examination with no evidence or pain with weight bearing or on palpation. Repetitive use testing was completed with no additional range of loss of motion. The examiner noted that the exam was not conducted after repetitive use over time and giving consideration to the subjective complaints and objective finds that there was no rational basis to make a notation regarding any functional loss after repetitive use over time or flare ups. Guarding and muscle spasms were not assessed. Ankylosis was not diagnosed. Bowel and bladder problems were not diagnosed. IVDS was not assessed. Passive range of motion was not conducted as it was not feasible to do in a safe and reasonable manner. A November 2020 VA examination report shows that the Veteran reported flare ups resulted in headaches lasting several hours. He reported functional loss as difficulty with driving and stiffness to the neck. Range of motion of the cervical spine was noted as forward flexion to 25 degrees, extension to 20 degrees, right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain to palpation was not assessed. Pain was noted on examination causing functional loss. Repetitive use testing was completed with no additional range of loss of motion. The examiner noted that the exam was not conducted after repetitive use over time or during a flare up but estimated the function impairment would result in range of motion reduced to forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. Guarding and muscle spasms were assessed resulting in abnormal gait or abnormal spinal contour. Ankylosis was not diagnosed. Bowel and bladder problems were not diagnosed. IVDS was not assessed. The Veteran’s cervical spine was noted to impact his ability to work. The Veteran was noted have difficulty with field of movement due to his cervical spine. Difficulty with long distance driving, lifting and carrying items. To be a The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for cervical spine disability based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The preponderance of the evidence is also against a rating in excess of 30 percent for the cervical spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use with pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements does not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. Here the Veteran was able to move his cervical spine during range of motion testing and there were no indications that the cervical spine was fixed in any positions. The Board notes that the Veteran is service connected for left and right upper extremity radiculopathy associated with the cervical spine disability but has not communicated disagreement with those evaluations. Additionally, no other neurological impairments have been diagnosed that are related to the cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for the cervical spine disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. Entitlement to service connection for migraines secondary to cervical spine disability The Veteran asserts that service connection is warranted for migraine headaches that he reported onset after an in-service cervical spine injury. The Veteran reported experiencing headaches since that incident. A review of the Veteran’s service treatment records shows no reports or diagnosis of headaches but do show he experienced a fracture to the C7 vertebra. A December 2013 VA examination report shows that after review of the claims file and in person examination, the examiner opined that it was less likely than not that the Veteran’s headaches were related to active service. The examiner noted that the Veteran’s separation examination showed no reports or diagnosis of headaches. The examiner also opined that it was less likely than not that the headaches were proximately due to or caused by the cervical spine disability. A February 2017 VA examination report shows that the Veteran was diagnosed with tension headaches in 2013. The Veteran report experiencing headaches since injuring his neck in active service and had experienced headaches ever since. After a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran’s headaches were caused or aggravated by active service. The examiner noted the he was not seen for nor treated for headaches while on active duty. The examiner also noted that there was no medical evidence of ongoing treatment for a headache condition one year after service. After service, the examiner noted that the Veteran was not treated for headaches until 2013, 27 years after service. An August 2019 VA examination report shows that the examiner noted that the Veteran’s discharge exam was silent regarding complaints of headaches on December 1986 and was silent one year after discharge. The examiner noted that the first mention of headaches were actually 27 years after separation from service. No nexus or chronicity of care was noted. The examiner opined that it was less likely than not that the Veteran’s headaches were caused by the service connected cervical spine disability. The examiner reported that she could not confirm a current chronic diagnosis with current available records or on today’s exam. Therefore, no nexus or plausible secondary relationship was established. The examiner noted that headaches were not documented in the claims file until 2013 and was not due to in-service cervical vertebra fracture. The Veteran’s reported headaches on setting when he injured his neck were inconsistent with documentation in the claims file. Aggravation was also not shown as there was no connection between the two conditions. A November 2020 VA examination report shows that the examiner opined that it was less likely than not that the Veteran’s headache were related to active service to include secondary to a cervical spine disability. The examiner remarked that while the Veteran’s had a current diagnosis of headaches and reported that the condition onset during service, there was no objective evidence to support that this disability onset during service. The examiner noted that the service treatment records were absent for headaches. The examiner also reported that the Veteran was service connected for a C7 spinous process fracture that was healed well. A November 2020 private evaluation report shows that the private examiner reviewed the claims file and interviewed the Veteran regarding his migraine/headache condition. The examiner referenced the Veteran’s inservice trauma to the cervical spine which resulted in a fracture. The examiner noted that the Veteran reported experiencing headaches after this incident. The examiner then remarked that the Veteran’s significant trauma to his neck while in service, and that it was a well settled fact that trauma to either the cervical spine or head do in fact result in migraine headaches citing to medical literature. Given that the Veteran had a diagnosis of migraine headaches and the onset was subsequent to his cervical spine trauma, it was at least as likely as not that the Veteran’s headaches were related to active service. The Board notes the law mandates that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, that doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). An accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology. Alemany v. Brown, 9 Vet. App. 518 (1996); 38 U.S.C. § 5107 (b). Further, a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in relative equipoise, the law dictates that the appellant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is aware of the conflicting medical evidence as to whether the Veteran’s current headaches are related to active service. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise. The Board finds that none of the medical opinions are more probative than the other opinions of record. The Veteran’s private examination report dated November 2020 reported that the Veteran’s tension headaches were related to the cervical spine trauma incurred during active service. The private examiner based this opinion on a review of the claims file, interview with the Veteran, and cited to medical literature. The numerous VA examination reports, in contrast, determined that the Veteran’s headaches were not related to active service and were all based on the same rationale. Each medical opinion is supported by a reasoned analysis of medical facts. Neives-Rodriguuez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the medical opinions and diagnoses in this case are at least in equipoise as to whether the Veteran’s headaches are related to his active service. When evidence is in relative equipoise, reasonable doubt must be decided in the appellant’s favor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).) REASONS FOR REMAND Remand is required for adjudication of entitlement to a TDIU. The Veteran has asserted that his service-connected disabilities interfere with his ability to maintain substantial gainful employment. As such, the Board finds that the matter of a total disability rating based on individual unemployability is raised by the record and is remanded for additional development below. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's disability picture has changed with the granting of service connection for a headaches, and the issue of TDIU is contingent on the ratings and effective dates assigned to this now service-connected disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The claim for TDIU is remanded for the following action: After ratings have been assigned for the now service connected headaches, adjudicate the TDIU claim. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.