Citation Nr: 21014847 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-00 054 DATE: March 15, 2021 ORDER A rating in excess of 30 percent for degenerative disc disease of the cervical spine (neck disability) is denied. REMANDED Entitlement to service connection for neurological impairment manifested by numbness of the face is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s neck disability has most nearly approximated forward flexion of the cervical spine limited to 15 degrees or less; unfavorable ankylosis of the entire cervical spine has not been demonstrated. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a neck 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 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1981 to July 2001. His decorations include the Combat Infantryman Badge, the Master Parachutist Badge, and the Ranger Tab. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO, in pertinent part, denied a rating in excess of 10 percent for degenerative disc disease of the cervical spine. In June 2015 and March 2016, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. In June 2016, after taking further action, the AOJ increased the rating for the Veteran’s cervical spine to 20 percent, effective April 20, 2016. In September 2018, the Board granted a 30 percent rating for the Veteran’s cervical spine disability throughout the period on appeal and remanded the case to the AOJ for consideration of his entitlement to a still-higher rating. After taking further action, the AOJ confirmed and continued the 30 percent rating and returned the case to the Board. In the September 2018 remand, the Board directed the AOJ to obtain all outstanding VA and relevant private treatment records. The Board also directed the AOJ to obtain an addendum opinion addressing the nature and etiology of any neurological disorders of the Veteran’s upper extremities. The claims file reflects that the AOJ obtained both VA treatment records and private treatment records as requested, and also obtained the requested addendum opinion. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that when the Veteran’s appeal was previously before the Board in September 2018, the Board remanded the issue of entitlement to separate compensable ratings for neurologic abnormalities of the bilateral upper extremities associated with the neck disability, and entitlement to service connection for left carpal tunnel syndrome. However, service connection was thereafter established for left and right upper extremity radiculopathy in a January 2020 rating decision, and for left carpal tunnel syndrome in a February 2020 rating decision. The record does not reflect that the Veteran disagreed with either decision. As such, those matters are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed in order to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of the award of service connection). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the claim. Entitlement to a rating in excess of 30 percent for a neck disability. The Veteran contends, in essence, that he is entitled to an increased evaluation for his neck disability, as his symptoms more nearly approximate the criteria for a higher rating. He is currently evaluated as 30 percent disabled under Diagnostic Code 5243. Ratings under that diagnostic code are derived from the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or 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, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, if the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, if the combined range of motion of the cervical spine is not greater than 170 degrees. A 30 percent evaluation 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 evaluation is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal ranges of motion for each component of spinal motion are the maximums that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). In a December 2020 brief, the Veteran’s representative asserted that the Veteran should be entitled to a higher evaluation because his cervical spine was surgically fused at the C3 to C5 levels, and that the fusion should be considered equivalent to ankylosis. However, as noted above, favorable ankylosis of the entire cervical spine warrants no more than the currently assigned 30 percent rating. The only question remaining for the Board is whether the Veteran’s neck disability symptoms have more nearly approximated unfavorable ankylosis of the entire cervical spine so as to warrant a rating in excess of 30 percent. In that regard, the Veteran’s VA and private treatment records generally reflect that his neck disability has been manifested by symptoms of pain, weakness, and limitation of motion throughout the period on appeal. However, there is no indication that, even during a flare-up or with repeated use over time, his symptoms have approximated complete fixation of all cervical vertebrae. While the record reflects that he has experienced functional loss associated with his neck disability, including an inability to lift heavy objects and interference with being in a seated position, there is no indication that his neck disability has resulted 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 neurological symptoms due to nerve root stretching. The Board notes that the Veteran’s medical records document his neurologic symptoms associated with his neck disability as due to nerve root compression, not stretching, and he is already separately compensated for such symptoms. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s neck disability has more nearly approximated unfavorable ankylosis of the entire cervical spine during any portion of the period on appeal. A rating in excess of 30 percent is not warranted. In arriving at this conclusion, the Board has considered whether the Veteran can be assigned a higher rating for his disability under Diagnostic Code 5243 based on incapacitating episodes. The Board notes, however, that he is already in receipt of a combined 60 percent rating for the orthopedic and neurologic components of his neck disability. See 38 C.F.R. § 4.25 (indicating that 30, 20, and 20 percent ratings combine to 60 percent). No higher rating is available based on incapacitating episodes. REASONS FOR REMAND Entitlement to service connection for numbness of the face is remanded. During the Veteran’s most recent VA-authorized examination of his neck, conducted in October 2019, the examiner listed the current symptoms of his disability as stiffness and pain in the neck, numbness in the left side of his face, and tingling in his arms and hands. The examiner also listed numbness in the left side of his face as part of the Veteran’s description of functional loss or functional impairment of the cervical spine. The Veteran similarly reported during a September 2017 VA-authorized examination that with flare-ups of his neck disability, he experienced numbness that went up the left side of his face. Although the Veteran has not formally filed a claim specifically related to symptoms of facial numbness, the Board finds that the issue of entitlement to service connection for such numbness has been reasonably raised by the record as potentially secondary to his neck disability. Pursuant to 38 C.F.R. § 3.155(d)(2), and in accordance with the United States Court of Appeals for Veterans Claims decision in Bailey v. Wilkie, No. 19-2661 (Jan. 6, 2021), when entitlement to secondary service connection for a disability is raised while VA is evaluating a service-connected disability, the claimant need not file a separate, formal claim for secondary service connection for those residuals. Id. at 2. Instead, VA must consider such disabilities as “complications” in connection with a properly initiated claim concerning the original evaluation. Id. Thus, the issue of entitlement to service connection for facial numbness, as secondary to a neck disability, is properly before the Board. While the October 2019 VA-authorized examiner indicated that numbness in the left side of the Veteran’s face was a symptom related to his neck disability, the examiner did not indicate whether his facial numbness represented a distinct disability. Additionally, it does not appear that the Veteran’s current evaluations for his neck disability and associated radiculopathy of the left and right upper extremities encompass the symptom of facial numbness. Further, the record does not otherwise contain any medical evidence addressing the etiology of the Veteran’s reported facial numbness. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In light of the medical evidence indicating a relationship between the Veteran’s reported facial numbness and his service-connected neck disability, remand for a VA examination is warranted in order to determine the nature and etiology of his facial numbness. This matter is REMANDED for the following action: 1. Arrange to have the Veteran scheduled for an examination with an appropriately qualified examiner to determine the nature and etiology of his reported facial numbness. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any currently diagnosed condition related to the Veteran’s reported facial numbness has been (a) caused or (b) aggravated (worsened beyond natural progression by) by his service-connected neck disability. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, 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.