Citation Nr: 21013193 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-27 678 DATE: March 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent, prior to March 15, 2017, and 30 percent thereafter, for the service-connected cervical spine disability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent, prior to March 12, 2010, and 40 percent thereafter, for service-connected right upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. Prior to March 15, 2017, the Veteran’s cervical spine disability was productive of forward flexion of the cervical spine limited to, at worst, 26 degrees. 2. Since March 15, 2017, the Veteran’s cervical spine disability has been productive of forward flexion of the cervical spine limited to, at worst, 10 degrees. CONCLUSION OF LAW 1. The criteria for an award of a disability rating in excess of 20 percent for the service-connected cervical spine disability are not met for the period prior to March 15, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5010-5235. 2. The criteria for an award of a disability rating in excess of 30 percent for the service-connected cervical spine disability are not met for the period from March 15, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5010-5235. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1976 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, September 2017, and January 2020 decisions, the Board remanded the above-listed issues for further development. The Board notes that additional VA examination reports were associated with the claims file subsequent to a July 2020 supplemental statement of the case (SSOC). However, the records are unrelated to the issue decided herein and the Board will proceed with a decision. The Veteran asserts that he should be awarded higher ratings for his cervical spine disability as his symptoms are worse than those contemplated by the currently assigned ratings. During a VA examination in April 2009, the Veteran reported reduced range of motion of the neck and pain and numbness of the fingers. He noted a history of three surgical procedures of the neck. The Veteran endorsed fatigue, decreased motion, stiffness, weakness, spasms, and pain in the lower area of the neck radiating to the shoulders and base of his skull. He endorsed flare-ups every two to three weeks lasting one to two days. Clinical evaluation of the spine revealed normal posture, head position and symmetry in appearance. There was no gibbus, kyphosis, list, scoliosis, reverse lordosis, or cervical spine ankylosis. The examiner noted spasms, pain with motion, and tenderness. Range of motion of the cervical spine revealed flexion to 26 degrees, extension to 45 degrees, left lateral flexion to 18 degrees, right lateral flexion to 14 degrees, left lateral rotation to 44 degrees, and right lateral rotation to 30 degrees. There was objective evidence of pain on active range of motion. Range of motion after three repetitions was unchanged with the exception of left and right lateral flexion which was to 15 degrees. The examiner diagnosed the Veteran with degenerative disc and joint disease and spinal stenosis of the cervical spine and anterior fusion C3-7. During a VA examination in March 2017, the Veteran reported that he had another surgical procedure on his neck in 2010 with resolution of neck pain but continued right upper radicular symptoms. The examiner indicated that the Veteran’s cervical spine disability does not result in any incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. The Veteran reported flare-ups of the cervical spine resulting in chronic numbness of the hands and fingers. Range of motion testing revealed forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. Pain was noted in all ranges of motion but there was no evidence of pain with weight bearing. There was objective evidence of tenderness in the cervical paraspinal muscles bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner indicated that pain significantly limits functional ability with repeated use over a period of time and during flare-ups but does not result in any change in range of motion. The examiner reported that spasms of the cervical paraspinal muscles bilaterally result in straightening of the cervical spine. The examiner also noted that the Veteran ambulates and moves with stiffness of the neck and was observed to have to turn his entire body when positioning his head/neck to review papers at the examiner’s desk. There was no evidence of pain passive range of motion testing or when the joint was used in non-weight bearing. The examiner assessed the Veteran with residuals of a cervical spine fracture. During a VA examination in September 2018, the Veteran reported neck pain and spasms and limited cervical motion. The Veteran reported flare-ups of the cervical spine two to three times in the last twelve months. He stated that he was not able to drive, work, fish, or lift. Range of motion testing of the cervical spine revealed forward flexion to 10 degrees, extension to 5 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. Pain was noted in all ranges of motion but there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no guarding or muscle spasm. There was no ankylosis of the spine. The examiner indicated that the Veteran’s cervical spine disability does not result in any incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. The Veteran did not ambulate with any assistive devices. The examiner reported that passive range of motion could not be done in a safe and reasonable manner and was not performed. There was no objective evidence of pain when the spine is in a non-weight bearing position at rest. The examiner assessed the Veteran with intervertebral disc syndrome. During a VA examination in February 2020, the Veteran reported increased pain, worsening limitation of in ranges of motion, and intermittent spams. Range of motion of the cervical spine revealed forward flexion to 20 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. Pain was noted in all ranges of motion and there was evidence of pain with weight bearing. There was evidence of tenderness on palpation of the cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner reported that with repeated use over time, pain, fatigue, and weakness would not limit the Veteran’s ranges of motion. The examiner indicated that during flare-ups, pain, fatigue, and weakness would result in some limited motion. Forward flexion was estimated to be limited to 15 degrees, extension was unchanged at 5 degrees, left and right lateral flexion was limited to 10 degrees, and left and right lateral rotation was limited to 15 degrees. The examiner indicated that the Veteran does not have guarding and muscle spasms do not result in abnormal gait or abnormal spinal contour. The examiner reported that the cervical spine disability interferes with sitting in that he is unable to sit for long periods of time. There was no ankylosis of the spine. The examiner indicated that the Veteran’s cervical spine disability does not result in any incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. The Veteran did not ambulate with any assistive devices. The examiner reported that passive range of motion could not be done in a safe and reasonable manner and was not performed. The examiner diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome. VA and private treatment reports reflect treatment for reports of cervical pain and diagnostic studies which revealed degenerative changes of the cervical spine. The Veteran underwent various surgical procedures of the cervical spine. The Board notes that the Veteran was in receipt of a temporary total rating (100 percent) pursuant to 38 C.F.R. § 4.30 for the period from March 11, 2010, to April 30, 2010. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his cervical spine disability for the period prior to March 15, 2017. In this regard, there is no indication from the record that the Veteran had cervical spine flexion 15 or less, or favorable ankylosis of the entire cervical spine. In fact, the Veteran’s cervical flexion was limited to, at worst, 26 degrees. The Board notes that the additional limitation due to pain, weakness, incoordination, fatigability, or lack of endurance on repetition, during flare-ups, or following repeated use over a period of time was accounted for by the VA examiner when determining the Veteran’s range of motion. 38 C.F.R. § 4.40, 4.45. There is no other evidence showing that he has more limitation of motion than that found at the VA examinations. While the Veteran reported some flare-ups, there is no indication from the treatment notes of record that he has functional limitation worse than that reported at his VA examinations, even during a flare-up. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 20 percent for functional impairment of the cervical spine. Therefore, the Veteran is not entitled to a rating in excess of 20 percent for his cervical spine disability prior to March 15, 2017. 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5235. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his cervical spine disability for the period since March 15, 2017. In this regard, there is no indication from the record that the Veteran had unfavorable ankylosis of the entire cervical spine. In fact, the Veteran’s cervical flexion was limited to, at worst, 10 degrees and neither favorable nor unfavorable ankylosis of the cervical spine was shown. The Board notes that the additional limitation due to pain, weakness, incoordination, fatigability, or lack of endurance on repetition, during flare-ups, or following repeated use over a period of time was accounted for by the VA examiners when determining the Veteran’s range of motion. 38 C.F.R. § 4.40, 4.45. There is no other evidence showing that he has more limitation of motion than that found at the VA examinations. While the Veteran reported some flare-ups, there is no indication from the treatment notes of record that he has functional limitation worse than that reported at his VA examinations, even during a flare-up. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 30 percent for functional impairment of the cervical spine. Therefore, the Veteran is not entitled to a rating in excess of 30 percent for his cervical spine disability since March 15, 2017. 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5235. Consideration has been given to assigning higher ratings based on incapacitating episodes. While there is an indication from the record that the Veteran has intervertebral disc syndrome, there is no indication from the record that the Veteran has experienced incapacitating episodes requiring medically prescribed bed rest. Therefore, the Veteran is appropriately rated based on limitation of motion and pain. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the Veteran has been found to have radiculopathy resulting from his cervical spine disability. However, the Veteran is already in receipt of separate compensable ratings for right and left upper extremity radiculopathy. The right upper extremity is addressed in the remand below and the left upper extremity is not currently before the Board and will not be discussed in this decision. REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary with regard to the issue of entitlement to increased ratings for right upper extremity radiculopathy. A review of the record shows that additional relevant evidence was added to the file by VA since the last SSOC regarding that issue in July 2020. As no SSOC was issued after the submission of these records, remand is required so that this new evidence can be reviewed in the first instance by the agency of original jurisdiction (AOJ). 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The matter is REMANDED for the following action: Readjudicate the remaining claim on appeal, to specifically include consideration of all evidence added to the record since the last adjudication of the claim. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.