Citation Nr: 21014602 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-08 243 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative joint and disc disease of the cervical spine is denied. FINDING OF FACT The Veteran’s cervical spine disability has not been manifested by forward flexion of the cervical spine of 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5242 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1968 to March 1970, and from March 1973 to March 1975, to include service in Vietnam. His decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board remanded this issue for additional development in November 2018 and July 2020. Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his cervical spine disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran filed a claim for an increased rating that was received by VA in November 2007. Currently, the Veteran has a 20 percent disability rating for his cervical spine disability under Diagnostic Code 5243-5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assignable 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. A 20 percent rating is assignable 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. A 30 percent rating is assignable for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive “or” requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met]. The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) 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 evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with 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 disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). Factual Background and Analysis The Veteran underwent a VA examination in March 2010. The Veteran worked for the Department of Defense at the Pueblo Chemical Department in law enforcement. He reported that in the past year he missed 115 days of work and 88 of those days were due to his cervical spine disability. The rest of his missed days were due to his posttraumatic stress disorder (PTSD) and other emotional issues. The Veteran had no limitations in his activities of daily living and could sit, stand and climb stairs to a unlimited extent. He could walk for 2 miles or for 20 minutes and was limited by his balance due to a pontine tumor he had. He could also lift 100 pounds and could run. The Veteran reported having intermittent trouble with paresthesias and numbness as well as intermittent neck pain. He had no weakness, stiffness, fatigability or lack of endurance. He described his pain as 2/10 to 6/10 on the pain scale. His neck pain occurred 3 times a week and lasted up to 3 hours at a time. The pain radiated to his left upper extremity. He did not use a neck brace or assistive devices. He had 2 flare-ups in the last year which on one occasion lasted for 2 hours while on the other occasion it lasted for 5 to 10 minutes. There were no incapacitating episodes which required physician prescribed bedrest in the last year. On examination he was in no distress. There was no scoliosis, spasm or tenderness. He could perform toe, heel and tandem ambulation. There was no muscular atrophy. On examination, forward flexion was from 0 to 30 degrees with pain at 30 degrees. Extension was from 0 to 38 degrees with pain at 28 degrees through 38 degrees. Lateral flexion to the right was from 0 to 15 degrees and lateral flexion to the left was from 0 to 30 degrees. Rotation to both the right and left was from 0 to 60 degrees. There was no change in active or passive range of motion during repetitive use testing and there was no loss of range of motion observed due to painful motion, weakness, impaired endurance, incoordination or instability. The diagnosis was a cervical spine musculoskeletal strain with intermittent subjective chronic pain with no objective findings of radiculopathy. There was also cervical degenerative joint disease. The examiner found that the Veteran’s radicular symptoms of the left upper extremity were due to his cervical spine disability. The Veteran underwent a VA examination in April 2012. The Veteran’s activities of daily living were not impacted and the Veteran used a cane for his right knee disability. He also occasionally used a right knee brace. The Veteran presented with complaints of pain in his neck with radiation to both arms and shoulders. His symptoms included pain without weakness, stiffness, fatigability or lack of endurance. His symptoms were intermittent with a frequency of 4 to 5 times a year with a severity of 5/10 on the pain scale. He was able to function in his usual occupation and denied any missed days due to his neck disability. He had no flare-ups or incapacitating episodes of his neck pain. Flexion was from 0 to 30 degrees and extension was 45 degrees or greater. Right lateral flexion was from 0 to 20 degrees and left lateral flexion was from 0 to 30 degrees. Rotation to both the right and left was from 0 to 60 degrees. The Veteran was able to perform repetitive use testing without additional limitation of range of motion after 3 repetitions. There was functional loss as there was pain on movement and less movement than normal. He had localized tenderness but no guarding or muscle spasm. Strength, reflex and sensory examinations were normal with no muscle atrophy or ankylosis. There was mild paresthesias and intermittent pain in the bilateral upper extremities. The Veteran did not have intervertebral disc syndrome. The examiner found that the Veteran’s cervical spine disability impacted his ability to work as his neck disability limited his ability to bend, stoop, lift and carry heavy objects. The Veteran underwent a VA examination in October 2015. The examiner noted that the Veteran had cervical spine degenerative joint disease and degenerative disc disease with bilateral upper radiculopathy. The Veteran had pain in his neck that coincided with the tingling and numbness in his fingers which occurred once a month and lasted about 1 to 2 hours. He had intermittent neck pain once or twice a week at the base of his neck that was a 5/10 on the pain scale. He did not report flare-ups but had functional loss or impairment as he had intermittent pain and numbness and tingling in his hands. On examination, forward flexion was from 0 to 45 degrees. Extension was from 0 to 35 degrees. Lateral flexion to the right and left was from 0 to 30 degrees. Rotation to both the right and left was from 0 to 45 degrees. The abnormal range of motion contributed to functional loss itself as there was pain, stiffness and limited range of motion. There was evidence of pain with weight bearing but no tenderness to palpation. He was able to perform repetitive use testing with no additional loss of function after 3 repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. He had muscle spasms which resulted in an abnormal spine contour but not an abnormal gait. There was no localized tenderness or guarding. Muscle strength, sensory and reflex examinations were all normal. There was mild radiculopathy of the bilateral upper extremities. There was no ankylosis and the Veteran did not have intervertebral disc disease. The Veteran did not use any assistive devices and his ability to work was not impacted by his cervical spine disability. The Veteran underwent a VA examination in August 2019. The examiner noted that the Veteran had degenerative disc disease of the cervical spine. The Veteran presented with reports of stiffness and neck pain. He did not report flare-ups but had functional loss or impairment as he avoided looking over his shoulders and also avoided rapid/repetitive head movements. On examination, forward flexion was from 0 to 30 degrees. Extension was from 0 to 30 degrees. Lateral flexion to the right and left was from 0 to 30 degrees. Right lateral rotation was from 0 to 40 degrees and left lateral rotation was from 0 to 45 degrees. The abnormal range of motion contributed to functional loss as he could not look over his shoulders or head. There was evidence of pain with weight bearing but no tenderness to palpation. He was able to perform repetitive use testing with no additional loss of function after 3 repetitions. The examiner found that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. While the Veteran was able to express this limitation in terms of range of motion, the range of motion was again forward flexion was from 0 to 30 degrees, extension from 0 to 30 degrees, lateral flexion to the right and left from 0 to 30 degrees, right lateral rotation from 0 to 40 degrees and left lateral rotation from 0 to 45 degrees. Pain, weakness, fatigability or incoordination did not significantly limited functional ability with flare-ups as no flare-ups were reported. There were no muscle spasms or guarding. Muscle strength, sensory and reflex examinations were all normal. There was no ankylosis and the Veteran did not have intervertebral disc disease. The Veteran did not use any assistive devices. His ability to work was impacted as he must avoid overhead work and rapid/repetitive head/neck movements or driving for his work. Considering the pertinent facts in light of applicable rating criteria, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s cervical spine disability. As noted above, a rating in excess of 20 percent is available if the competent medical and other evidence of record reflects no less than either (1) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months or (2) forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. See the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and The General Rating Formula for Diseases and Injuries of the Spine, respectively. Regarding the orthopedic manifestations, the record does not contain evidence of forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, as such, the general rating criteria do not entitle the Veteran to a rating in excess of 20 percent. Specifically, the March 2010 and April 2012 VA examinations demonstrated forward flexion from 0 to 30 degrees, the October 2015 VA examination demonstrated forward flexion from 0 to 45 degrees and the most recent VA examination in August 2019 demonstrated forward flexion from 0 to 30 degrees. The current general rating formula provides for disability ratings without regard to symptoms such as pain, stiffness, or aching. Additionally, all of the VA examiners specifically found that there was no ankylosis. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted on the VA examinations that the Veteran exhibited pain on cervical spine motion, the functional loss is not equivalent to limitation of flexion to 15 degrees or less; or, favorable ankylosis of the entire cervical spine to meet the criteria for a 30 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted above, the March 2010, April 2012 and October 2015 VA examiners also noted that the Veteran did not have additional limitation in range of motion of the cervical spine following repetitive use while the additional repetitive use limitation noted on the August 2019 VA examination did not demonstrate flexion limited to 15 degrees. Since flexion has not been limited to 15 degrees or less even after repetitive use; and the Veteran’s spine is not ankylosed since he has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for a 30 percent evaluation have not been met. Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his service-connected cervical spine disability. Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board again notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Notably, the VA examinations all specifically found that the Veteran did not have intervertebral disc syndrome. Accordingly, a rating in excess of 20 percent under the Formula for Rating intervertebral disc disease on the Basis of Incapacitating Episodes is not warranted. Thus, for all the foregoing reasons, the Board finds that a rating in excess of 20 percent for service-connected cervical spine disability is not warranted. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. The Board notes that the Veteran demonstrated some sensory deficits as multiple VA examiners noted bilateral upper extremity sensory deficits. As a result, in an April 2010 rating decision, the RO granted service connection for left upper extremity radiculopathy and in a September 2013 rating decision, the RO granted service connection for right upper extremity radiculopathy. However, the Veteran has not disagreed with the October 2012 and September 2013 grants of separate evaluations for right and left upper extremity radiculopathy or the subsequent increased ratings that have been granted for these disabilities. Accordingly, these issues are not before the Board. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a cervical spine disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.