Citation Nr: 21022976 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-54 710 DATE: April 19, 2021 ORDER A rating higher than 20 percent for service-connected degenerative arthritis of the cervical spine is denied. FINDING OF FACT The Veteran’s service-connected degenerative arthritis of the cervical spine has not manifested forward flexion to 15 degrees or less or favorable ankylosis. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for service-connected degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1961 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision which reduced the rating for his service-connected degenerative arthritis of the cervical spine from 20 percent to 10 percent effective January 1, 2016. In April 2019, he testified at a hearing regarding it. The Veterans Law Judge (VLJ) who conducted this hearing determined that the rating reduction was improper in a September 2019 Board decision. A 20 percent rating therefore was restored as of the aforementioned date. The Board then remanded a rating higher than 20 percent for additional development. While this additional development was being completed, the VLJ who conducted the Veteran’s hearing stopped working for the Board. The Veteran was informed of this and advised of his options for testifying at another hearing in an early March 2021 letter. He has not responded, however. The Board thus assumes, like the letter indicated, he does not desire another hearing. Finally, his representative’s February 2018 request for a complete copy of his claims file was fulfilled by the Board in late March 2021. Adjudication can proceed at this time now that these preliminary issues have been addressed. Higher Rating Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by symptoms, with the criteria for that disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. When two ratings may be applicable, the higher is assigned only if the criteria for it are more nearly approximated. 38 C.F.R. § 4.7. Any reasonable doubt on this or any other point is resolved in the claimant’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Different ratings may be assigned for different periods. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a disability worsened thus must be determined. For ratings involving motion, important factors include pain, weakness, swelling, excess fatigability, incoordination, and more or less movement than normal. 38 C.F.R. § 4.45. A higher rating may be assigned when there is functional loss due to pain or another factor, to include during flare-ups and with repeated use over a period of time. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-207 (1995). However, pain does not constitute functional loss unless it affects some aspect of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Degenerative Arthritis of the Cervical Spine When a Diagnostic Code specifically addresses a disability, it must be used for rating that disability. Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). Diagnostic Code 5242 under 38 C.F.R. § 4.71a addresses degenerative arthritis of the spine. Whether with or without symptoms like pain (whether or not it radiates), stiffness, or aching, it and most other Diagnostic Codes for spinal disabilities uses the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion not greater than 170 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned when there is forward flexion of the cervical spine is 15 degrees or less or favorable ankylosis of the entire cervical spine. Unfavorable ankylosis of the entire cervical spine results in a 40 percent rating. The maximum 100 percent rating is reserved for unfavorable ankylosis of the entire spine, both cervical and thoracolumbar segments. Unfavorable ankylosis is where the entire spine segment or the entire spine is fixed in flexion or extension and there is difficulty walking, restricted moth opening and chewing, limited breathing, gastrointestinal symptoms, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, and/or neurologic symptoms. Note (5). For each associated objective neurologic abnormality, a separate rating finally is assigned under the appropriate Diagnostic Code. Note (1). Prior to discussing the merits, the Board notes that several musculoskeletal Diagnostic Codes were amended effective February 7, 2021. 85 Fed. Reg. 76453-76469 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These amendments are not applicable here, however. The substance of Diagnostic Code 5242 indeed was not changed. While it noted to see also Diagnostic Code 5003 for degenerative arthritis generally prior to amendment, the maximum rating thereunder in any circumstance was 20 percent. A higher rating is not possible based on it, in other words. Diagnostic Code 5242 notes after amendment to also see either Diagnostic Code 5003, concerning degenerative arthritis other than post-traumatic generally, or Diagnostic Code 5010, concerning post-traumatic arthritis generally. The Veteran’s cervical spine degenerative arthritis is secondary to trauma which occurred during service. Yet the new Diagnostic Code 5010 specifies that rating is as limitation of motion, dislocation, or other specified instability for the affected joint. It accordingly refers back to the General Rating Formula utilized by Diagnostic Code 5242. The Board finds that a rating higher than 20 percent for the Veteran’s service-connected degenerative arthritis of the cervical spine is not warranted under this formula. Even the criteria for the next highest rating of 30 percent have not been more nearly approximated. The Veteran primarily complains of worsening constant pain, but he also has complained of stiffness and locking. Muscle spasms, localized tenderness or pain on palpation, pain on movement, guarding, and less movement than normal have been found upon examination. However, there is no indication of cervical spine forward flexion was to 15 degrees or less. VA treatment records do not include any measurements in this regard. Normal forward flexion of the cervical spine is to 45 degrees, however. Note (2); Plate V. Given the number of times the Veteran received treatment for his neck, notation of his forward flexion would be expected if it was limited to 1/3 or less of normal. That there is none strongly suggests that any forward flexion limitation he experienced was not that severe. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). This corresponds with the Veteran’s VA medical examinations. At his April 2014 examination, his forward flexion was to 40 degrees with pain initially and after three repetitions. It was to 30 degrees with pain initially and after three repetitions at his August 2020 examination. It finally was to 35 degrees with pain initially, but to only 30 degrees after three repetitions due to pain, fatigue, weakness, lack of endurance, and incoordination, at his January 2021 examination. An affected joint and, if possible, the opposite undamaged joint are to be tested for pain on both active and passive motion as well as in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (citing 38 C.F.R. § 4.59). There is no opposite joint for the cervical spine. To the extent the aforementioned examinations did not meet all of these other testing requirements, reliance on them nevertheless is appropriate. This is because the testing conducted first typically represents the worst-case scenario. Specifically, the standard is to test a joint in active motion. Actively moving a joint generally is equally or more limiting than having it passively moved by someone else like the examiner. If it had been measured at the April 2014 examination or at the January 2021 examination, where it was noted to be painful, the Veteran’s passive forward flexion thus likely would have been better than or at least the same as his measured painful active forward flexion. Measured passive forward flexion indeed was painful and the same as measured painful active forward flexion the August 2020 examination, for example. Weight-bearing and nonweight-bearing finally both were assessed at the August 2020 and January 2021 examinations, are required. Both were noted to be painful. There is every reason to believe the same would have been noted in April 2014 as well, if such had been required at the time, since the Veteran’s complaints that his pain occurs in virtually all situations have been steadfast throughout the period on appeal. Either estimates of motion during flare-ups and following repetitive use over a period of time or explanations for why estimates cannot be provided are required. Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). It was estimated that there would be no additional limitation of motion during a flare-up, even though the Veteran denied them, or following repeated use over a period of time at the April 2014 VA medical examination. He reported frequent severe but short-lived pain flare-ups at the August 2020 and January 2021 examinations. It was estimated at the former examination that his forward flexion during a flare-up or following repeated use over a period of time would remain 30 degrees despite any increase in pain. 30 degrees also was the estimate for his forward flexion during a flare-up and the measurement for it following repeated use over a period of time at the latter examination (which took place immediately following such use), with 5 degree decrease over his initial 35 degrees attributed to pain as well as fatigue, weakness, lack of endurance, and incoordination. In sum, the Veteran’s forward flexion has been 30 degrees at worst. This is double the 15 degrees required for a 30 percent rating. Neither pain nor any other factor has resulted in functional loss to the degree required for a higher rating, in other words. With respect the other criterion for a 30 percent rating, there is no indication of favorable ankylosis of the entire cervical spine. There indeed is no indication of any ankylosis in any portion of the cervical spine. Ankylosis is immobility, consolidation, or fixation of a joint. Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran has not reported anything of the sort. His VA treatment records are silent in this regard, when some notation would be expected if ankylosis existed given the regularity of his treatment. Buczynski, 24 Vet. App. at 224. So is his April 2014 examination, though it can be extrapolated that there was no ankylosis given that the Veteran had some range of motion in every direction. Ankylosis also specifically was not found at the August 2020 and January 2021 examinations. Some of the functional impairments that have been found upon examination with respect to the Veteran’s neck finally emphasize that he does not have ankylosis. In particular, he has limitations but not an inability to turn his head and to look up and down. He also cannot make any sudden movements or changes in direction, which means that he is able to move and change the direction of his neck at least to some extent. The criteria for a rating higher than 20 percent, in conclusion, have not been met. Turning to associated objective neurologic abnormalities, separate ratings have been assigned already for right upper extremity radiculopathy and for left upper extremity radiculopathy. At no point has the Veteran reported symptoms suggestive of any other associated neurologic abnormality. His VA treatment records also do not suggest any, and all three of his VA medical examinations specifically did not find any. The Board thus finds that no additional separate ratings are warranted. Lastly, consideration has been given to rating the Veteran’s disability pursuant to Diagnostic Code 5243. This Diagnostic Code pertains to intervertebral disc syndrome (IVDS). It calls for rating under the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes and was unchanged, save for a clarifying sentence concerning when to assign it, by the recent amendments. However, all three of the Veteran’s examinations specifically found that he does not have IVDS. Neither his reports nor his VA treatment records refute these findings. Diagnostic Code 5243 accordingly is not applicable. There are no other Diagnostic Codes to consider. A rating higher than 20 percent for the Veteran’s service-connected degenerative arthritis of the cervical spine is denied based upon the preponderance of the evidence. This determination holds true for the entire period on appeal. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.