Citation Nr: 21015309 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-16 759 DATE: March 17, 2021 ORDER Entitlement to a rating of 30 percent for a cervical spine disability from May 4, 2010 to October 4, 2020 is granted. Entitlement to a rating in excess of 30 percent for a cervical spine disability throughout the appeal period is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s cervical spine disability has more nearly approximated the criteria for a 30 percent rating. 2. The Veteran does not have cervical spine ankylosis. 3. The Veteran is employed full-time. CONCLUSIONS OF LAW 1. From May 4, 2010 to October 4, 2020, the criteria for a rating of 30 percent for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. Throughout the appeal period, the criteria for a rating in excess of 30 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 5243. 3. The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1986 to May 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2017. In November 2017, June 2019, and July 2020 this case was remanded for additional development. Increased Rating The Veteran seeks an increased rating for her cervical spine disability. The period on appeal begins on May 4, 2010, the date the Veteran filed her claim of increased rating. She received a 20 percent rating from May 4, 2010 until October 4, 2020. After October 4, 2020, she received a 30 percent rating under DC 5243. Diagnostic Code 5243 provides that IVDS is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS 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 rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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; 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 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. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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.”). 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. § 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. New/Old Regulations The Board has considered whether it is more beneficial for the Veteran to be rated under the old criteria for rating cervical spine disabilities under DC 5243 or the new criteria for cervical spine disabilities under DC 5243. Notably, the new regulations require evidence of disc herniation with compression and/or irritation of the adjacent nerve root. Once evidence of these things is noted, the DC 5243 criteria states that a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months and a 40 percent 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. Here, the evidence does not support that the Veteran has any incapacitating episodes. See November 2020 and October 2020 VA examinations. As a result, even though there is not a specific finding indicating whether the Veteran has disc herniation with compression and/or irritation of the adjacent nerve root, the Veteran is still more appropriately rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine because she does not have incapacitating episodes as defined by that regulation (requiring physician prescribed bedrest). The General Rating Formula for Diseases and Injuries of the Spine remains the same under the old and new criteria. The Board finds that a rating of 30 percent for a cervical spine disability is warranted throughout the appeal period, specifically since the Veteran filed her claim of increased rating on May 4, 2010. Throughout this appeal, the Veteran contends that her neck disability has remained consistently severe and worsened from her initial examination. She describes having constant neck pain. In January 2020 she reported flare ups that occur daily, consist of increased pain in neck can last for half a day then subside back to her baseline. At her VA examination in November 2020 she did not report flare ups. In January 2020, her forward flexion was 0 to 20 degrees, extension 0 to 15 degrees, right lateral flexion 0 to 20 degrees, left lateral flexion 0 to 10 degrees, rotation 0 to 30 degrees. See January 2020 VA examination. She reports that her pain causes functional limitation resulting in limited ability to move her neck in any direction, weightbearing issues, and tenderness. Her range of motion with flareups remained the same. See January 2020 VA examination. Her October 2020 VA examination notes that she experiences flareups resulting in increased pain with overhead activities or heavy lifting. Her initial forward flexion was limited from 0 to 20 degrees. She experiences localized tenderness, pain with weightbearing and pain with movement. Taking into account repeated use over time, the VA examiner opined that her forward flexion is limited 0 to 15 degrees. With flareups, the Veteran’s forward flexion is limited to 0 to 10 degrees. The November 2020 VA examination noted similar limitations except, this VA examiner opined that with flareups and repetitive use the Veteran has forward flexion limited 0 to 5 degrees. It appears that the Veteran’s report of worsening symptoms was ultimately confirmed by the October 2020 VA examination. Thus, after considering the Veteran’s increased functional loss during flare-ups and with repeated use over time, as well as her use of pain medication, the Board finds that the Veteran’s cervical spine disability has more nearly approximated forward flexion of the cervical spine 15 degrees or less throughout the appeal period. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that a rating of 30 percent for her cervical spine disability is warranted for the entire period on appeal. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). A rating in excess of 30 percent is not warranted at any point during the appeal period. The Board notes the Veteran’s contentions that she uses bedrest to manage her cervical spine disability. However, the evidence of record does not show that a physician has prescribed bed rest in order to manage her disability. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation does not result in unfavorable ankylosis of the entire cervical spine. As a result, a rating in excess of 30 percent must be denied. TDIU The Veteran seeks a TDIU. In the July 2020 decision, the Board specifically noted that it was necessary for the Veteran to provide additional information regarding her TDIU claim, including filing a VA Form 21-8940. To date, that information has not been received. As a result, the Board will adjudicate this claim based on the evidence of record. The evidence of record indicates that the Veteran is working full-time. See January 2020 VA treatment record. She reports working an average of 8 hrs a day, although she lost 3 or more days off work in a month due to her disability. See May 2020 VA treatment record. Another record indicates that she lost roughly 2 days a month from work due to her disabilities. See January 2018 VA treatment record. Still, the evidence shows that she continues to maintain her full-time work. Despite challenges she faces with her disabilities, it does not appear that her service-connected disabilities have prevented her from obtaining and maintaining employment. As a result, a TDIU must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. 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.