Citation Nr: 21014076 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-43 402 DATE: March 11, 2021 ORDER A rating of 20 percent, but not higher, for cervical strain with degenerative disc disease and bilateral neural foraminal narrowing is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran’s pain and corresponding functional impairment, including during flare-ups, results in a disability analogous to limitation of flexion to 16 to 30 degrees. CONCLUSION OF LAW The criteria for a rating of 20 percent, but not higher, for cervical condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1972 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in August 2019 and remanded for additional development. In the decision, however, the Board granted a separate 30 percent rating for the Veteran’s headaches and remanded entitlement to a rating in excess of 30 percent. Following the August 2019 Board remand, the RO granted a 50 percent rating for his headaches and as well as separate 20 percent ratings for his right upper extremity and left upper extremity cervical radiculopathy. In addition, on his May 2019 Board hearing the Veteran and his representative indicated that they were not claiming total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. Therefore, a claim of TDIU is not before the Board. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be 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 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Neck condition The Veteran is currently rated at 10 percent under DC 5237 from February 19, 2014 for his service-connected cervical strain with degenerative disc disease and bilateral neural foraminal narrowing. The Veteran reports that a higher rating of 10 percent is warranted. Under the general rating formula for diseases and injuries of the cervical spine, a 10 percent rating requires that the condition be manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the 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; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires that the condition be manifested by 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 requires that the condition be manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine. The Board finds that the Veteran's neck condition more nearly approximates a 20 percent rating. Throughout the appeal, he reported increased pain, stiffness, localized tenderness, and worsening pain made worse with daily activities and forward flexion. Further, he reports having flare ups of neck pain, functional impairment causing him to seek medical treatment and, in some occasions, not been able to continue with his daily activities and the necessity to lay down. See BVA hearing transcript (May 2019) and see also VA medical examination (October 2020). The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In his October 2020 VA examination, the Veteran exhibited limitation of cervical forward flexion ranging at 35 degrees. Moreover, he suffers from flare ups that makes the condition worse affecting his range of motion. Additionally, his pain, stiffness, fatigue, weakness and lack of endurance significantly limit his functional ability. See VA medical examination (October 2020). The Board acknowledges that on an October 2020 supplemental statement of the case the RO denied a rating in excess of 10 percent for his service-connected neck condition due to the Veteran not meeting the criteria for a higher rating. However, resolving all doubt in favor of the Veteran, the Board finds that the Veteran's neck condition more nearly approximates the criteria of a 20 percent rating when considering these reports of worsening pain with activity, flare ups, functional loss, use of pain medication, and the lay and medical evidence of record. Thus, a 20 percent rating is granted. However, the evidence on record and VA examinations do not reflect that the Veteran’s suffers, including during flare ups, from cervical forward flexion of 15 degrees or less. Additionally, the record does not indicate that the Veteran suffers from any type of ankylosis on the cervical spine. Therefore, an increase rating in excess of 20 percent is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate 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.