Citation Nr: 21015506 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 10-45 334 DATE: March 17, 2021 ORDER Entitlement to an increased disability evaluation for cervical strain, initially rated as 30 percent disabling, is denied. Entitlement to an increased disability evaluation for lumbar strain, initially rated as 40 percent disabling, is denied. FINDINGS OF FACT 1. For the entire period of appeal, the Veteran’s service-connected cervical strain is manifested pain and forward flexion of the cervical spine of less than 15 degrees, without ankylosis. 2. For the entire period of appeal, the Veteran’s service-connected lumbar strain is manifested pain and forward flexion of the thoracolumbar spine of less than 30 degrees, without ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2020). 2. The criteria for a disability evaluation in excess of 40 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1988 to October 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, granted service connection for the Veteran’s cervical strain and lumbar strain, and assigned a 10 percent evaluation for each, effective November 1, 2008. The Veteran’s claims were previously denied in a September 2015 Board decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In February 2017, the Court set aside the September 2015 Board decision pertaining to the Veteran’s claims for increased disability evaluations for his service-connected cervical strain and lumbar strain disabilities and remanded such claims for further development. Consequently, in October 2017, the Board remanded this appeal for further development, including scheduling the Veteran for additional VA examinations to evaluate the severity of his service-connected cervical strain and lumbar strain. In May 2019, the Veteran subsequently underwent additional VA examinations to evaluate his neck and low back disabilities. The Board notes that a June 2019 rating decision increased the Veteran’s evaluation for his service-connected cervical strain from 10 percent to 30 percent, effective May 9, 2019. The case was returned to the Board following the issuance of a supplemental statement of the case. In August 2019, the Board granted the Veteran an increased, 30 percent disability evaluation for his service-connected cervical strain for the rating period prior to May 9, 2019, as well as granted an increased, 40 percent disability evaluation for his service-connected lumbar strain for the entire rating period on appeal; a disability rating in excess of 30 percent for the Veteran’s cervical strain for the rating period since May 9, 2019 was denied. The Veteran appealed the denial of ratings in excess of 30 percent for cervical strain and 40 percent for lumbar strain to the Court. In October 2020, the parties filed a Joint Motion for Partial Remand (Joint Motion or JMPR) which requested that the Board’s decision, to the extent that disability evaluations in excess of 30 percent for the Veteran’s service-connected cervical strain and in excess of 40 percent for the Veteran’s lumbar strain, be vacated and remanded. An October 2020 Court Order granted the motion and remanded the claims for readjudication consistent with the terms of the Joint Motion. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 1. Entitlement to an increased disability evaluation for cervical strain, initially rated as 30 percent disabling. The Veteran has been assigned a 30 percent disability rating for cervical strain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. According to the general rating formula, 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. A 100 percent disability evaluation is available for unfavorable ankylosis of the entire spine. In the present case, the Veteran is rated for his cervical strain using the general rating formula. The Board acknowledges that the Joint Motion argues that findings contained in the Veteran’s VA treatment records and at a September 2014 VA examination reflecting findings of “intervertebral disc degeneration” (see December 15, 2009 VA treatment record) and “cervical strain with recurrent IVDS” (see September 2014 VA examination report), indicate that the Veteran has intervertebral disc syndrome. However, the Board observes that the May 2019 VA examiner specifically found that the Veteran did not meet the diagnostic criteria for a diagnosis of intervertebral disc syndrome. Regardless of whether the Veteran’s cervical strain is productive of intervertebral disc syndrome of the cervical spine, the Veteran has not reported, and the evidence does not demonstrate, that he experiences incapacitating episodes requiring bed rest prescribed by a physician. Therefore, the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable here. The Board finds that the weight of the evidence demonstrates that the Veteran’s cervical strain most closely approximates the criteria for the currently assigned 30 percent disability rating for the rating period on appeal, as the Veteran’s service-connected cervical strain has manifested pain and forward flexion of the cervical spine of less than 15 degrees, without evidence of unfavorable ankylosis of the entire cervical spine. At the May 2019 VA examination, the VA examiner indicated that pain, weakness, fatigability or incoordination significantly limits functional ability with flare ups and causes additional functional loss as follows: forward flexion limited to 5 degrees; extension limited to 5 degrees; right and left lateral flexion limited to 0 degrees; and right and left lateral rotation both limited to 10 degrees. The VA examiner further found no objective evidence of pain when the spine is in a non-weight bearing position at rest. Non-weight bearing assessment and opposing joint assessment were found not to be applicable, and passive range of motion testing was not performed as the examiner found it not feasible to complete in a safe and reasonable manner. The May 2019 VA examiner further indicated mild radiculopathy of the bilateral upper extremities, to include paresthesias or numbness, muscle spasms, and the demonstration of an antalgic gait, but found no muscle atrophy, no sensory abnormalities, and no localized tenderness, guarding, or muscle spasm of cervical spine. The VA examiner further noted that MRI reports reflected cervical lordosis and levoscoliosis, although not grossly appreciable to palpation, and a September 2008 MRI revealed minimal annular bulges at C3-4 and C4-5, as well as a slightly more prominent annular bulge at C5-6, representing an interval change since the Veteran’s prior imaging studies. The VA examiner indicated that a new diagnosis of annular bulging with an unclear etiology is appropriate, and that it may be a progression from May 2006 and September 2008 MRI results. The VA examiner noted that the Veteran’s service-connected cervical strain caused him to lose less than one week of work time in the last 12 months, but that that his cervical strain and annular bulge contribute to his radiculopathy and limit his physical activity, as he is only able to complete tasks with minimal neck movement. The VA examiner specifically indicated that the Veteran did not meet the diagnostic criteria for a diagnosis of intervertebral disc syndrome and that the Veteran did not have ankylosis of the cervical spine. The Board notes that the Veteran also underwent two additional VA examinations in December 2008 and September 2014, both of which found his service-connected cervical strain to manifest forward flexion range of motion greater than 30 degrees. However, as noted in the Board’s October 2017 remand, the 2008 and 2014 VA examinations lack probative value due to the omission of an adequate discussion of the Veteran’s MRI results or the impact of the Veteran’s functional loss on the range of motion of his neck. The Board finds that the criteria for a disability rating of 40 percent have not been met or more nearly approximated. The evidence does not demonstrate the presence of ankylosis. The Board has considered the lay evidence of pain. However, that evidence when accepted as correct does not establish that there is ankylosis as required for a higher rating. As noted at the May 2019 VA examination, throughout the rating period on appeal, the Veteran does not experience additional functional loss on repetitive use testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran does not require the use of assistive devices for locomotion. The Board acknowledges that the Joint Motion found that, in the Board’s September 2019 decision, the Board “misapplied” Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Joint Motion noted that, under Johnston, a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted if a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion. See Johnston, 10 Vet. App. at 85. The Joint Motion also noted that, according to the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, the maximum rating available is 100 percent. The Joint Motion indicated that, although the Board recognized Johnston, the Board’s finding that the Veteran was awarded the “maximum schedular rating under Diagnostic Code 5237 absent evidence of unfavorable ankylosis of entire cervical spine, consideration of functional loss under 38 C.F.R. §§ 4.40, 4.45 and accompanying case law is not required, as any finding of pain on motion could not result in a higher rating” was in error. However, the Board would be remiss to ignore the fact that there are no disability evaluations in excess of 30 percent available based on limitation of motion, and that the presence of higher disability evaluations of 40 percent and 100 percent does not render Johnston inapplicable. Nevertheless, to the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran’s report of symptomatology and reports of functional loss, and the May 2019 VA examination report clearly demonstrates that such limitation of motion is not equivalent to ankylosis. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Therefore, the lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of the current 30 percent disability rating. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of a separate evaluation for right upper extremity and left upper extremity radiculopathy, and as such, it is not for consideration here. In light of the foregoing, the Board finds that a rating greater than 30 percent disability evaluation for the service-connected cervical strain is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to an increased disability evaluation for lumbar strain, initially rated as 40 percent disabling. The Veteran has been assigned a 40 percent disability rating for lumbar strain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. According to the general rating formula, a 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 6239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for the current assigned 40 percent disability evaluation for the rating period on appeal. In this regard, the Board finds that the Veteran’s service-connected lumbar strain has manifested pain and forward flexion of the lumbar spine of less than 30 degrees, thereby warranting a 40 percent disability rating under Diagnostic Code 5237, but not greater, as 40 percent is the maximum rating available under Diagnostic Code 5237 without evidence of unfavorable ankylosis of the entire thoracolumbar spine. The Board again notes that the May 2019 VA examiner specifically found that the Veteran did not meet the diagnostic criteria for a diagnosis of intervertebral disc syndrome, and that, despite the Veteran’s report of treating his lumbar strain by means of immobility, the Veteran has not reported, and the evidence does not demonstrate, that he experiences incapacitating episodes requiring bed rest prescribed by a physician. Therefore, the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable here. At the May 2019 VA examination, he was diagnosed with lumbosacral strain and degenerative arthritis. The Veteran reported to the VA examiner that he suffers from flareups of his lumbar strain which manifests as severe pain described as a 10 on a scale of 1 to 10 lasting up to one week, triggered by activity, and requiring immobility for several days, to include lying flat, elevating his feet, and applying ice. The Veteran also reported that the pain manifested by his lumbar strain wakes him up at night and radiates along femoral nerve on both sides, left greater than right, and that he treats the pain with ibuprofen, naproxen, and Tylenol. The Veteran further reported that his low back pain results in functional loss, including the inability to move with exacerbating the pain and requiring him to lie still. After assessing initial range of motion, the May 2019 examiner indicated that pain, weakness, fatigability or incoordination significantly limits functional ability with flare ups and causes additional functional loss as follows: forward flexion limited to 0 degrees; extension limited to 0 degrees; right and left lateral flexion limited to 0 degrees; and right and left lateral rotation both limited to 0 degrees. The VA examiner further found no objective evidence of pain when the spine is in a non-weight bearing position at rest. Non-weight bearing assessment and opposing joint assessment were found not to be applicable, and passive range of motion testing was not performed as the examiner found it not feasible to complete in a safe and reasonable manner. The VA examiner further found objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, described as 7 on a scale of 1 to 10, but no evidence of pain with weight bearing and no additional loss of function or range of motion after three repetitions. While conceding that the examination of the Veteran was not conducted during flareup, the VA examiner indicated that following further review of the Veteran’s records and giving consideration both to subjective complaints and objective exam findings, there remains no rational basis to make a notation regarding any additional loss of function or range of motion when it comes to repeated use over time. The May 2019 VA examiner further indicated mild intermittent radiculopathy of the bilateral lower extremities, and decreased sensation in the left thigh or knee, but found no muscle atrophy, no guarding or muscle spasm of the low back, no reflex abnormalities, and no unfavorable ankylosis or favorable ankylosis of the entire thoracolumbar spine. The VA examiner further noted that the Veteran’s service-connected low back disability had caused him to lose less than one week of work time in the last 12 months, during a flare of his lumbosacral strain, bilateral lower radiculopathy, and arthritis, due to his need to lie down completely and not move. The VA examiner further noted that May 2006 and September 2008 MRI results show rotation of the spine, without palpable deformation to the spine, although it is demonstrated on imaging, and that the Veteran ambulates with a minimally antalgic gait. The VA examiner further noted that degenerative arthritis of the spine had been documented by imaging studies. The VA examiner further indicated that a new diagnosis of degenerative arthritis and bilateral lower radiculopathy were warranted and were possibly a progression of the Veteran’s lumbar strain but could also warrant a new diagnosis not appreciated at prior encounters. The Board again notes that the Veteran also underwent two additional VA examinations in December 2008 and September 2014, both of which found his service-connected low back disability to manifest forward flexion range of motion greater than 30 degrees. However, as noted in the Board’s October 2017 remand, the 2008 and 2014 VA examinations lack probative value due to the omission of an adequate discussion of the Veteran’s MRI results or the impact of the Veteran’s functional loss on the range of motion of his low back. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. The evidence does not demonstrate the presence of ankylosis; the May 2019 VA examiner expressly noted that the Veteran does not experience ankylosis of the thoracolumbar spine. The Board has considered the lay evidence of pain. However, that evidence when accepted as correct does not establish that there is ankylosis as required for a higher rating. As noted at the May 2019 VA examination, throughout the rating period on appeal, the Veteran’s functional loss is estimated as flexion to no worse than 25 degrees on repetitive use testing. See Correia, supra. Likewise, the Veteran does not require the use of assistive devices for locomotion. The Board again acknowledges that the Joint Motion found that the Board, in its September 2019 decision, “misapplied” Johnston v. Brown, 10 Vet. App. 80, 85 (1997), as previously described. However, as previously discussed, the rating clearly does not provide for any disability evaluations in excess of 40 percent based on limitation of motion and that the presence of higher disability evaluations of 40 percent and 100 percent, standing alone, do not render Johnston inapplicable. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran’s report of symptomatology and reports of functional loss, and the May 2019 VA examination report clearly demonstrates that such limitation of motion is not equivalent to ankylosis. See Mitchell, supra. The Board reiterates that the evidence demonstrates that the Veteran’s lumbar strain is not productive of intervertebral disc disease, and that the Veteran does not experience incapacitating episodes requiring bed rest; the Veteran’s VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran is separately evaluated for his right lower extremity radiculopathy and left lower extremity radiculopathy. As such, it is not for consideration here. In light of the foregoing, the Board finds that a disability rating in excess of 40 percent for the service-connected lumbar strain is not warranted. K. R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.