Citation Nr: 21012470 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-29 411 DATE: March 4, 2021 ORDER A 30 percent rating for cervical spondylosis with uncovertebral arthritis at C4-5 (cervical spine disability), prior to May 5, 2017, is granted. FINDING OF FACT Prior to May 5, 2017, the Veteran's cervical spinal disability was manifested by forward flexion proximate to 15 degrees or less; there was no cervical ankylosis and there was no physician prescribed bed rest. CONCLUSION OF LAW Prior to May 5, 2017, the criteria for a rating of 30 percent, but no higher, for cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from April 1994 to June 2008. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA), denying a rating in excess of 20 percent prior to May 5, 2017, for cervical spondylosis with uncovertebral arthritis at C4-5. This issue was previously before the Board in July 2014, where it was remanded to the Agency of Original Jurisdiction (AOJ) for a new examination subsequent to the Veteran’s claim that her condition had worsened. The case then came before the Board again in April 2017 and May 2020, where in each case the issue was remanded back to the RO for new medical opinions due to prior opinions failing to satisfy the range of motion measurement requirements outlined in Correia v. McDonald. 28 Vet. App. 158 (2016). The May 2020 remand particularly requested a retrospective medical opinion to estimate the degree of range of motion the Veteran would have experienced on passive motion and non-weight-bearing if such had been tested at the time of the prior VA examinations in January 2011 and August 2014. Disability ratings are determined by applying the criteria set forth in 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. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the most critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, 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. 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. 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. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Veteran contends that the severity of her service-connected cervical spine disability entitles her to an initial increased rating in excess of 20 percent. Here, the Board agrees with that contention and finds that the Veteran is entitled to an initial rating of 30 percent, but no more, for her cervical spine disability. As discussed above, this issue was repeatedly remanded by the Board in past adjudications in efforts to obtain VA medical opinions that accurately detailed the severity of the Veteran’s condition and were also consistent with musculoskeletal examination requirements pursuant to Correia. As such, the Board directed the to schedule the Veteran for examinations to assess the Veteran’s cervical spine disability. The first VA cervical spine examination was provided in January 2011. During that examination, the Veteran complained of neck pain that was “there pretty much all the time.” She reported getting epidural steroid injections to relieve the pain, with minimal to moderate short-term improvement, and the use of muscle relaxants. She denied experiencing flareups. She also used a TENS unit which she reported to relieve some pain while it was being used. She reported no incapacitating episodes and no bedrest prescribed by a physician. Upon testing, forward flexion was limited to 30 degrees, with pain from 20-30 degrees. Extension was similarly limited to 30 degrees, but with pain from 10-30 degrees Left and right lateral flexion were 0-30 degrees with pain from 10-30 degrees. Left and right lateral rotation was 0-60 degrees with pain from 40-60 degrees. The examiner noted that because the Veteran was not having a flareup, it would be mere speculation for them to estimate any further limitation the Veteran may experience during a flare. There was no ankylosis reported. The second VA cervical spine examination was provided August 2014. In that examination, the Veteran reported an increase in her symptoms. She reported continuing treatment for injections, receiving injections every 3-4 months and the continued use of muscle relaxants. She there is no indication of incapacitating episodes and or bedrest prescribed by a physician. Upon testing, both forward flexion and extension were limited to 30 degrees, with no objective evidence of painful motion with either movement. Right and left lateral flexion were also limited to 30 degrees, with no objective evidence of painful motion with either movement. Repetitive testing demonstrated no changes in range of motion. The only functional loss of the cervical spine recorded was “less movement than normal.” The examiner notated localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. They also notated guarding of the cervical spine not resulting in abnormal gait or abnormal spinal contour. No opinion as to flareups was provided. There was no ankylosis reported. As aforementioned, the Board recognized the two VA examinations as inadequate in light of VA examination requirements as outlined in Correia, and the case was remanded yet again in order to obtain retrospective medical opinions to estimate the degree of range of motion the Veteran would have experienced on passive motion and non-weight-bearing if such had been tested at the time of the above examinations. The October 2020 retrospective opinion estimated that, as to the January 2011 examination, the Veteran’s decrease in range of motion due to repetitive use over time would be reflected as a limitation of forward flexion and extension from 0-25 degrees; a limitation of right and left lateral flexion from 0-25 degrees; and a limitation of right and left lateral rotation from 0-55 degrees. The opinion estimated that Veteran’s decrease in range of motion due to flareups would be reflected as a limitation of forward flexion from 0-25 degrees; a limitation of extension from 0-20 degrees; a limitation of right lateral flexion from 0-20 degrees; a limitation of left lateral flexion from 0-25 degrees; a limitation of right lateral rotation from 0-55 degrees; and a limitation of left lateral rotation from 0-50 degrees. There was no rationale provided for making these particular estimates. The October 2020 retrospective opinion further estimated that, as to the August 2014 examination, the Veteran’s decrease in range of motion due to repetitive use over time would be reflected as a limitation of forward flexion and extension from 0-25 degrees; a limitation of right lateral flexion from 0-25 degrees; a limitation of left lateral flexion from 0-30 degrees; a limitation of right lateral rotation from 0-45 degrees; and a limitation of left lateral rotation from 0-50 degrees. The opinion estimated that Veteran’s decrease in range of motion due to flareups would be reflected as a limitation of forward flexion from 0-25 degrees; a limitation of extension from 0-20 degrees; a limitation of right lateral flexion from 0-20 degrees; a limitation of left lateral flexion from 0-25 degrees; a limitation of right lateral rotation from 0-40 degrees; and a limitation of left lateral rotation from 0-45 degrees. Again, there was no rationale provided for making these particular estimates. Based on Board-ordered VA examinations and opinions alone, the Veteran’s condition would appear not to qualify her for a higher rating. However, these opinions are notably inconsistent with range of motion measurements taken at physical therapy appointments within the same appeal period. During a December 2012 physical therapy appointment, the physical therapist noted that the Veteran’s 2-week goal would be to increase the Veteran’s active range of motion of cervical spine flexion to 20 degrees – suggesting that the Veteran’s flexion was presently below 20 degrees, more closely approximating the 15 degree flexion threshold of a 30 percent rating than the 30 degree threshold of a 20 percent rating. Later, at a February 2015 physical therapy appointment, the physical therapist noted that the Veteran only demonstrated 25% of forward bending (flexion) within normal limits of the cervical active range of motion. Given that, per VA regulations, the normal limit of cervical flexion is 45 degrees, a limitation to 25% of the normal limit equates to a limitation of approximately 11.25 degrees. This measurement again more closely approximates the 15 degree flexion threshold of a 30 percent rating than the 30 degree threshold of a 20 percent rating. Further, the increase in limitation of range of movement over time is corroborated by notations made after the Veteran visited a VA pain clinic in June 2015, where a neurosurgery consultant remarked that her MRI showed that her central C4-5 disc herniation had increased since her 2010 MRI. The physical therapy assessments are contemporaneous reports of the Veteran's condition rather than a retrospective assessment of her condition. For this reason, the Board finds they are of greater probative value in assessing his condition at the time they were conducted. See Curry v. Brown, 7 Vet. App. 59, 67-68 (1994) (finding the Board had a plausible basis for assigning greater probative value to contemporaneous medical evidence). Based on these facts, the Board finds an increased rating in excess of 20 percent is warranted for the Veteran's cervical spine disability under the applicable Diagnostic Codes discussed above for the period from September 15, 2010 to May 4, 2017. Over the entire appeal period, there is no evidence of cervical ankylosis, or any periods of physician prescribed bedrest to support a rating in excess of 40 percent for a cervical spine disability. Resolving reasonable doubt in favor of the Veteran, an increased rating of 30 percent, but no higher, is warranted prior to May 5, 2017. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5243, 4.3, 4.7. (Continued on the next page)   As the Veteran has intervertebral disc syndrome associated with his cervical spine disability, the Board has also considered whether a higher rating may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the record does not reflect that there were incapacitating episodes for at least four weeks in a 12-month time period. Nor has the Veteran alleged incapacitating episodes due to his cervical spine condition lasting at least four weeks in a 12-month time period. Thus, there is no basis for a rating higher than 30 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.