Citation Nr: 21012669 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-15 817 DATE: March 4, 2021 ORDER A rating in excess of 20 percent for a cervical spine disability is denied. REMANDED Entitlement to service connection for GERD is remanded. Entitlement to service connection for voiding dysfunction, to include a prostate disability is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 1, 2017, is remanded. An effective date prior to November 1, 2017, for the grant of Chapter 35, Dependents’ Educational Assistance (DEA) benefits is remanded. FINDING OF FACT The Veteran’s cervical spine disability is manifest by symptoms more nearly approximating forward flexion of the cervical spine to greater than 15 degrees, but not greater than 30 degrees, and no ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 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 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from May 1953 to May 1956 and from July 1956 to July 1959. The Board previously considered this appeal in November 2020, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. Furthermore, the issue of service connection for a left hip disability was subsequently granted as left lower extremity radiculopathy in a January 2021 rating decision. As such, that issue is no longer on appeal. As this represents a full grant of the benefits sought, the issue is no longer on appeal. The Board notes a TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court essentially stated that a request for a total disability rating—whether expressly raised by a Veteran or reasonably raised by the record—is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. The issue of an earlier effective date for DEA benefits is inextricably intertwined with the TDIU claim, as it is a derivative of that award. Basic eligibility for Chapter 35 DEA benefits will be established, in relevant part, for a child of a veteran who has a permanent total disability rating. 38 U.S.C. § 3501(a)(1)(A); 38 C.F.R. §§ 3.807, 21.3021. The assignment of an effective date for Chapter 35 DEA benefits shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113(a). 1. A rating in excess of 20 percent for a cervical spine disability. The Veteran contends that he is entitled to a higher rating because he believes his neck symptoms are worse than those contemplated by the criteria for a 20 percent rating. Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran’s cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. 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. 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. 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. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a cervical spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, 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 that severe flare-ups occur multiple times per month would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. On VA examination in April 2012, the Veteran endorsed daily, moderate neck pain and decreased neck motion. There were no incapacitating episodes of spine disease. There were no assistive devices or limitations on walking. Inspection of spine was normal in posture, head position, and symmetry in appearance. Gait was normal. There were no abnormal spinal curvatures. Other than pain with motion, there were no objective abnormalities of the cervical sacrospinalis on examination of the spine muscles. Initial range of motion testing showed forward flexion to 20 degrees and extension to 40 degrees. Pain was noted on examination and caused functional loss described as difficulty looking over the shoulder while driving. There was no pain with weight bearing. There was objective evidence of paracervical tenderness and pain on active movement. There was no additional loss of function or range of motion after repetitive use testing. The Veteran had muscle spasms, guarding, and tenderness, but it did not result in an abnormal gait or abnormal spinal contour. There were no additional factors contributing to the neck disability. Muscle tone was normal and there was no muscle atrophy. Reflex, sensory, and detailed motor examinations were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities or findings related to the cervical spine. Furthermore, there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the neck disability. The March 2015 VA examination revealed functional impairment due to neck pain rated as 8/10 (with 10 being the highest) and occurred 2 to 3 times per month, lasting for 2 to 3 days each time. The Veteran estimated a 50 percent loss of neck motion during flare-ups. Initial range of motion testing showed forward flexion to 40 degrees and extension to 20 degrees. Pain was noted on examination and caused functional loss described as difficulty looking over the shoulder while driving. There was no pain with weight bearing. There was objective evidence of paracervical tenderness. Additional loss of function or range of motion after repetitive use testing was forward flexion to 30 degrees and extension to 30 degrees. The Veteran had muscle spasms, guarding, and tenderness, but it did not result in an abnormal gait or abnormal spinal contour. There were no additional factors contributing to the neck disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal. Sensory examination was normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities or findings related to the cervical spine. The Veteran told the VA examiner that his IVDS resulted in episodes of bed rest having a total duration of at least four weeks but less than six weeks during the past 12 months. There was no documented medical history of prescribed bed rest. He did not use any assistive devices for the neck disability. Furthermore, there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the neck disability. The VA examiner affirmed that the Veteran’s neck disability impacted his ability to work. On VA examination in February 2018, the Veteran endorsed functional impairment of the neck whenever he has an episode of severe neck pain. Initial range of motion testing showed forward flexion to 30 degrees and extension to 20 degrees. Pain was noted on examination and caused functional loss. There was no pain with weight bearing. There was no objective evidence of pain with weight bearing. There was slight tenderness to palpation at the lowermost paracervical spine area. There was no additional loss of function or range of motion after repetitive use testing. The Veteran had no muscle spasms, guarding or additional factors contributing to the neck disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal. Sensory examination was normal. Radiculopathy testing showed mild, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. The severity of left upper extremity radiculopathy was mild. There was no ankylosis or other neurologic abnormalities related to the cervical spine. The Veteran’s IVDS did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices for the neck disability. Furthermore, there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the neck disability. The VA examiner found the Veteran’s neck disability did not impact his ability to work. There was evidence of pain with passive range of motion testing. The January 2020 VA examination noted the Veteran’s endorsement of flare-ups, which he described as a “bad day” consisting of neck pain rated as 7/10 (with 10 being the highest), with approximately 8 to 10 bad days over the last 6 months. He said he had difficulty with turning his head all the way due to pain. Initial range of motion testing showed forward flexion to 35 degrees and extension to 35 degrees. Pain was noted on examination and caused functional loss. There was no pain with weight bearing. There was objective evidence of mild pain in the posterior neck. Additional loss of function or range of motion after repetitive use testing was estimated to be forward flexion to 30 degrees and extension to 30 degrees. The Veteran had no muscle spasms, guarding or additional factors contributing to the neck disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal. Sensory examination was normal for all areas except for decreased sensation to light touch for the bilateral hands/fingers, which the VA examiner noted the Veteran also had bilateral symmetrical trophic findings on his hands and arms consistent with diabetic neuropathy. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities or findings related to the cervical spine. The Veteran did not have IVDS. The VA examiner stated, “As he has been a diabetic for years and because IVDS related radicular symptoms are often asymmetrical and focal, and because diabetic neuropathies are diffuse, symmetrical and in a stocking glove distribution, it is likely that any IVDS related radicular symptoms have resolved with treatment and only a diabetic neuropathy remains.” He did not use any assistive devices for the neck disability. Furthermore, there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the neck disability. The VA examiner reiterated that the Veteran’s bilateral symmetrical trophic findings on his hands and arms with mild decreased sensation in his hands was symmetrically consistent with diabetic neuropathy, not radiculopathy. The VA examiner found the Veteran’s neck disability impacted his ability to work because he would have problems with strenuous or high impact activity such as with heavy construction, landscaping, or long distance truck driving due to difficulties checking his blind spot. There were no light manual limitations, nor sedentary/administrative/customer service limitations. There was evidence of pain with passive range of motion testing. On VA examination in October 2020, the Veteran endorsed worsened neck pain, numbness and tingling in his bilateral upper extremities. He said the neck pain caused functional impairment because made it more difficult to turn his head and to look up and down. He did not endorse flare-ups. Initial range of motion testing showed forward flexion to 25 degrees and extension to 25 degrees. Pain was noted on examination and caused functional loss. There was no pain with weight bearing. There was objective evidence of mild pain in the posterior neck. There was no additional loss of function or range of motion after repetitive use testing. The Veteran had muscle spasms of the cervical spine, but they did not result in an abnormal gait or abnormal spinal contour. There was no guarding or any other additional factors contributing to the neck disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was normal for all areas except for the left brachioradialis, which was hypoactive. Sensory examination was normal for all area except for decreased sensation to light touch for the bilateral hands/fingers. Radiculopathy testing showed he had moderate findings for intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral upper extremities. There were no other signs or symptoms of radiculopathy. There was no ankylosis. The Veteran’s IVDS did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices for the neck disability. Furthermore, there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the neck disability. The VA examiner found the Veteran’s neck disability impacted his ability to work due to difficulties with turning his head and looking up and down. There was evidence of pain with passive range of motion testing. The Board also acknowledges the Veteran’s point of view regarding statements of worsened symptoms. However, he was not able to identify a specific level of disability and relate such to the appropriate Diagnostic Codes. The evidence of record also does not show that the Veteran had ankylosis or prescribed bed rest and treatment by a physician. Nonetheless, application of the rating criteria to the objective evidence of symptoms documented in the record reveals that a higher rating is not warranted. The record does not support a separate rating for any additional neurological disabilities during this period that are not already service-connected. Accordingly, the VA medical examination opinions and findings are of greater probative value than the Veteran’s allegations regarding the severity of his service-connected neck disability during this period. Importantly, the Veteran’s complaints of pain with movement, and increased pain during flare-ups, are factored into the currently assigned rating. Although the measured range of motion is not equivalent to ankylosis, the actual functional loss due to such findings, to include less movement than normal, pain on movement, and pain during flare-ups have been considered. Nonetheless, these impairments do not raise the degree of this disability to the equivalent of the respective criteria for a higher rating than 20 percent. The Veteran repeatedly demonstrated in treatment and on examination that while additional functional losses existed, he remained able to effectively function with symptoms that more nearly approximate the criteria for a 20 percent rating. Therefore, the currently assigned 20 percent rating for this period adequately reflects the additional difficulty caused by his cervical spine disability. The Board has also considered whether a higher or separate rating may be warranted under an alternative Diagnostic Code, and finds that because the Veteran has been previously diagnosed with degenerative arthritis, spinal fusion, spinal stenosis and IVDS, Diagnostic Codes 5237 remains the most appropriate Code under which to rate the predominant symptoms associated with this service-connected disability. See Butts v. Brown, 5 Vet. App. 532 (1993). After examining the Veteran and considering his complaints, the Board reiterates that the VA examiners still found motion, albeit limited. Even considering the effects of pain, there is nothing in the record that suggests the pain resulted in a functional loss akin to the spine being fixed in flexion or extension, or ankylosis resulting in 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 5. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, 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. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 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., Note (1). There is no record of any order or directive from a doctor requiring bed rest. Post service treatment records reflect no periods of prescribed bed rest or total incapacitation. The Veteran has competently and credibly reported episodes of increased symptoms. However, in the absence of any physician’s statement indicating that bed rest and regular treatment were required during those periods, the definition of “incapacitating episode” has not been met at any time during the entire appellate period. VA examiners have verified such. Evaluation under these criteria is therefore not appropriate. See Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if supported by explanation and evidence). Regarding neurological impairment, the Veteran has already been granted service connection for the bilateral upper and lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. Finally, the Board notes that these provisions were amended effective February 7, 2021. These revisions, however, did not alter the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Revisions did alter Diagnostic Codes 5242, 5243 and 5244. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). Concerning Diagnostic Code 5243 concerning intervertebral disc syndrome, as of February 7, 2021, this code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, for all other disc diagnoses diagnostic code 5242 for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. The revised 5244 pertains to traumatic paralysis which does not apply to this case. As such, higher ratings under the revised ratings are also not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Service connection for GERD is remanded. An addendum medical opinion is needed to address whether the Veteran’s GERD is secondary to any medications prescribed to treat his service-connected disabilities. 2. Service connection for voiding dysfunction is remanded. VA treatment records do not show any prostate treatment. The March 2017 VA examination opinion stated the Veteran has an enlarged prostate due to benign prostatic hypertrophy (BPH), which causes his voiding dysfunction. The October 2020 VA examiner found the Veteran did not have a diagnosis for BPH, and the Veteran also confirmed that he did not have this diagnosis. However, the October 2020 VA examiner did not provide an opinion on the etiology of the Veteran’s voiding dysfunction. Accordingly, an addendum medical opinion is necessary to address whether the Veteran’s voiding dysfunction is secondary to a service-connected disability, to include any medications prescribed to treat his service-connected disabilities. 3. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 1, 2017, is remanded. 4. An effective date prior to November 1, 2017, for Chapter 35 DEA benefits is remanded. The Board notes that the issues of entitlement to a total disability rating based on individual unemployability and DEA benefits prior to November 1, 2017, cannot be adjudicated until the service connection issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s GERD. The examiner must review the claims file and answer the following: (a.) whether the Veteran’s GERD is at least as likely as not caused by medication prescribed to treat any service-connected disabilities. (b.) whether the Veteran’s GERD is at least as likely as not aggravated beyond its natural progression by medication prescribed to treat any service-connected disabilities. A complete rationale for all opinions is required. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s voiding dysfunction. The examiner must review the claims file and answer the following: (a.) whether the Veteran’s voiding dysfunction is at least as likely as not proximately due to a service-connected disability, to include the low back and PTSD with unspecified depressive disorder with chronic sleep disturbance, as well as any medications used to treat his service-connected disabilities. (b.) whether the Veteran’s voiding dysfunction is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the low back and PTSD with unspecified depressive disorder with chronic sleep disturbance, as well as medication prescribed to treat any service-connected disabilities. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.