Citation Nr: 21022981 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-32 452 DATE: April 19, 2021 ORDER Entitlement to an initial 30 percent rating for degenerative arthritis of the cervical spine, prior to March 21, 2019, is granted. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine, from March 21, 2019, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to September 27, 2018, is denied. REMANDED Entitlement to an initial, compensable rating for left shoulder strain is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's degenerative arthritis of the cervical spine has been manifested by functional loss more nearly approximating forward flexion limited to 15 degrees or less, but unfavorable ankylosis of the entire cervical spine, neurologic impairment outside of left upper extremity radiculopathy, and/or incapacitating episodes as defined by VA have not been shown. 2. Prior to September 27, 2018, the Veteran’s service-connected disabilities did not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for degenerative arthritis of the cervical spine prior to March 21, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 30 percent for degenerative arthritis of the cervical spine from March 21, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. Prior to September 27, 2018, the effects of the Veteran’s service-connected disorders did not render him unemployable. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1997 to November 2001; and in the United States Army from November 2003 to March 2004, April 2004 to September 2005, and from October 2006 to September 2009, to include service in Iraq. For his meritorious service, the Veteran was awarded the Army Commendation Medal, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). During the course of the Veteran's appeal, the RO recharacterized the Veteran’s service-connected cervical strain as degenerative arthritis of the cervical spine and assigned an increased 30 percent rating for the disability, effective March 21, 2019. As higher ratings for the disability are available prior to and from this date, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In October 2019, the AOJ granted entitlement to a TDIU, effective September 27, 2018, that is, the first date after records showed the Veteran was not employed. However, as the Veteran's TDIU claim was raised during the course of the appeal for increased rating for his cervical spine disability, and is therefore part-and-parcel of that claim. The award of a TDIU does not cover the entire period on appeal pertaining to the cervical spine disorder which stems from a March 2013 claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). As such, the Board will address the issue of entitlement to a TDIU prior to September 27, 2018. The Veteran was scheduled to appear for a hearing before the Board in April 2019. However, in April 2019, the Veteran submitted a statement asking to withdraw his request for a hearing. The Board will accordingly proceed with adjudication of his claim. 1. & 2. Increased rating for degenerative arthritis of the cervical spine The Veteran asserts that he is entitled to an increased rating for the service-connected degenerative arthritis of the cervical spine. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As the Veteran has already been awarded staged ratings for this disability, the Board will consider the propriety of the rating at each stage. The Veteran’s disability is currently rated as 10 and 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 and 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s wife submitted a statement in support of the Veteran’s claim in May 2013. In her statement, she reported that if the Veteran slept wrong, turns his neck wrong, or overworks his neck muscles, his neck will become stiff and he will not be able to move it at all. The Veteran appeared for a VA examination for his cervical strain in December 2013. During the examination, the Veteran reported that he experiences persistent decreased range of motion and periodic pain and stiffness. He stated that flare-ups did not impact the function of his cervical spine. The examiner reported the Veteran’s initial range of motion as follows: forward flexion ending at 45 degrees or greater; extension ending at 45 degrees or greater; right lateral flexion ending at 45 degrees or greater; left lateral flexion ending at 25 degrees; right lateral rotation ending at 80 degrees or greater; and left lateral rotation ending at 60 degrees. The Veteran did not have additional limitation in range of motion after repetitive use testing. The examiner reported that the Veteran did not have IVDS of the cervical spine. The examiner indicated that the Veteran’s neck disability did not current affect his work as a student, but it had been a problem when he was working as a mechanic. He had a hard time with bending, stooping, and lifting. When he was in service, the neck would seize up at times and he would not be able to move his neck for 1 week at a time. In his March 2014 notice of disagreement, the Veteran reported that he had trouble with his neck vertebrae pinching his nerves and seizing up. Someone had to drive him for several days until the muscles relaxed, and he had difficulty with performing daily activities such as chores and playing with his children. On the Veteran’s 2015 Form 9, he reported that his cervical spine disability was aggravated by his daily activities and made functioning difficult. He noted that the injury caused severe pain and altered range of motion that he believed had and would continue to worsen over time. The Veteran’s wife submitted another statement in support of his claim in August 2018. In her statement she reported that the Veteran’s neck trauma has worsened. She stated that the pain caused from nerves being pinched in his vertebrae were almost unbearable for him and caused him to have a very limited range of motion. VA treatment records reflect assessment of neck pain and that the Veteran was performing physical therapy exercises. Private treatment records received in April 2019 document that the Veteran’s cervical spine is abnormally positioned. In a statement submitted with the scan, the Veteran indicated that the scans establish that his cervical spine is greater than 15 degrees but less than 30 degrees in a forward flexion of 20 degrees. The Veteran appeared for another VA examination in August 2019. During the examination, the Veteran reported constant, sharp, intense neck pain that averages a 5 to 7 on a scale of 1 to 10. He reported that during a flare-up his pain is a 10 out of 10. He described his flare-ups as sporadic, depending on his activity. He stated that when the flare-ups occur, he has to stop what he is doing, lie down, apply an ice pack, massage his neck using a tens unit, and take motrin to relieve the pain. The Veteran reported that it takes a couple of days to relieve the pain of a flare-up, and flare-ups occur approximately twice a month. The Veteran also reported functional loss due to his cervical spine disability. Specifically, he stated that he is unable to lift or carry heavy objects, perform overhead tasks, rotate his head, or flex or extend his neck repeatedly. The examiner reported that the Veteran’s initial range of motion was abnormal with forward flexion from 0 to 45 degrees; extension from 0 to 30 degrees; right lateral flexion from 0 to 20 degrees; left lateral flexion from 0 to 20 degrees; right lateral rotation from 0 to 50 degrees; and left lateral rotation from 0 to 20 degrees. The Veteran had evidence of pain with weightbearing and additional loss of range of motion after repetitive use testing. There was pain on passive range of motion. After 3 repetitions, the Veteran exhibited forward flexion from 0 to 15 degrees; extension from 0 to 30 degrees; right lateral flexion from 0 to 10 degrees; left lateral flexion from 0 to 10 degrees; right lateral rotation from 0 to 30 degrees; and left lateral rotation from 0 to 10 degrees. The examiner noted that pain and lack of endurance significantly limited functional ability with flare-ups and with repeated use over time. While the Veteran was not being examined during these conditions, the examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups or with repeated use over time. However, estimated range of motion was equivalent to those findings noted after 3 repetitions. The examiner determined that there was no ankylosis of the spine; and no IVDS of the cervical spine. The examiner also indicated that there were signs and symptoms of radiculopathy, with involvement of the left upper radicular and middle radicular groups. With respect to impact on employment, the examiner indicated that the Veteran was unable to participate in heavy physical labor, to include lifting, pushing, pulling, or carrying. He was unable to perform overhead tasks, or tasks that required repeated flexing, extending or rotation of his head. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to a 30 percent evaluation throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied. However, given that the evidence of record prior to March 21, 2019, includes credible reports of worsening symptoms from the Veteran and his spouse, notations of physical therapy and treatment for neck pain and stiffness, with objective findings confirmed on VA examination in March 21, 2019, the Board resolves reasonable doubt in the Veteran’s favor and finds that this level of symptomatology, with functional impairment the equivalent of 15 degrees forward flexion or less, was present prior to March 21, 2019. Accordingly, a 30 percent rating is warranted for the period on appeal prior to March 21, 2019. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s cervical strain throughout the appeal period. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to limited range of motion, pain, and lack of endurance. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups occur twice a month and last for approximately 2 days, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. In addition, the Veteran has been shown to be able to perform repetitive range of motion testing on examination, with similar range of motion findings estimated during flare-up and with repeated use over time, and there is nothing to suggest fixation of the cervical spine. While the Veteran’s spouse reported in 2013 that there were occasions during which he could not move the neck, the Veteran has otherwise reported periods of limited mobility, but not complete fixation of the cervical spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the Veteran has reported episodes of pain during which he needs to lay down for relief, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for left upper extremity radiculopathy associated with degenerative arthritis of the cervical spine and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. In sum, there is no basis for staged ratings of the Veteran's service-connected disability, as his symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a uniform, 30 percent rating for left lower extremity radiculopathy, prior to and from March 21, 2019, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. TDIU prior to September 27, 2018 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R.§§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361. In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. In this case, prior to September 2018, the Veteran was service connected for major depressive disorder (rated as 50 percent disabling prior to August 6, 2018, and as 70 percent disabling from August 6, 2018), degenerative arthritis of the cervical spine (now 30 percent) and left shoulder strain (rated as noncompensable). His combined rating is 70 percent prior to August 2018, and 80 percent from October August 2018. Hence, the Veteran meets the criteria for schedular TDIU rating prior to September 27, 2018, per 38 C.F.R. § 4.16(a). In this case, the Veteran has reported that he was working through approximately October 2018 as a computer programmer. He previously was employed as a mechanic before going to school. On his VA Form 21-8940, Application for TDIU, he reported highest gross earnings of over $3000 per month. His total earned income for the previous 12 months as $18,000. However, an individual wage statement from the Veteran’s former employer reveals income of over $55,000 in 2017 and $38,000 in 2018. In this case, the Veteran's reported earnings were over the poverty threshold for a married individual under age 65 with two children under 18. See Department of Commerce, Bureau of the Census, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html; Bowling v. Principi, 15 Vet. App. 1, 7 (2001) (substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person). The record does not otherwise indicate that he was working in a protected environment while he was working, and the Veteran was previously able to complete schoolwork as a student prior to his most recent employment. Accordingly, the Board finds that the evidence does not indicate that the Veteran was unable to maintain and sustain gainful employment prior to September 2018. Accordingly, the Board concludes that a TDIU prior to September 27, 2018, must be denied. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Entitlement to a compensable rating for a left shoulder strain is remanded. The Veteran asserts that he is entitled to a compensable rating for the service-connected left shoulder strain. Before the Board can make a fully informed decision on whether the Veteran is entitled to a compensable rating, a new examination must be conducted. In this regard, the most recent VA examination of record for the Veteran’s left shoulder took place in December 2013. Since that time, the Veteran has submitted statements reporting a worsening in his left shoulder disability. Thus, a remand is necessary to determine the current nature and severity of the Veteran’s left shoulder disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide a complete rationale for all the findings and opinions. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.