Citation Nr: 21023568 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-09 931 DATE: April 21, 2021 ORDER Service connection for right ear hearing loss is denied. A 20 percent disability rating, but no higher, for the service-connected degenerative disc disease (DDD) of the cervical spine for the entire period on appeal prior to June 20, 2014, is granted. A disability rating in excess of 20 percent for the service-connected DDD of the cervical spine for the period on appeal from June 20, 2014, is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to service. 2. For the period on appeal prior to June 20, 2014, the Veteran’s service-connected DDD of the cervical spine more nearly approximated symptoms such as pain, flare ups, and forward flexion greater than 15 degrees but not greater than 30 degrees; the disability did not more nearly approximate forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine, or incapacitating episodes due to IVDS. 3. For the period on appeal before June 20, 2014, the Veteran’s service-connected DDD of the cervical spine did not more nearly approximate forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine, or incapacitating episodes due to IVDS. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for the assignment of a 20 percent disability rating, but no higher, for the service-connected DDD of the cervical spine for the period on appeal before June 20, 2014 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 3. The criteria for the assignment of a disability rating in excess of 20 percent for the service-connected DDD of the cervical spine for the period on appeal from June 20, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1977 to April 1999. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the December 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for bilateral hearing loss and confirmed and continued the 10 percent disability rating for the service-connected DDD of the cervical spine (previously evaluated as herniated cervical disc, C6-7, hereinafter referred to as cervical spine disability). The Veteran’s Notice of Disagreement (NOD) was received in July 2015. Then, a February 2016 rating decision increased the disability rating for the service-connected cervical spine disability from 10 percent to 20 percent from June 20, 2014. The Statement of the Case was issued in February 2016, and the Veteran’s VA form 9, substantive appeal to the Board was received in March 2016. In September 2018 the Board issued a decision denying service connection for the left ear hearing loss and remanded the claims of service connection for the right hearing loss and an increased disability rating for the service-connected cervical spine disability. 1. Entitlement to service connection for right ear hearing loss. The Veteran seeks service connection for right ear hearing loss. In his July 2015 NOD, the Veteran indicated that he was exposed to hazardous noise from tools in service, and that he worked on water mains and fire hydrants in near proximity of aircraft operations. The Veteran also indicated that he experienced a gradual loss of hearing since retiring in 1999. In his November 2016 statement, the Veteran indicated that he served in the Air Force from 1977 through 1999 and worked as a plumbing technician. The Veteran also indicated that while in service, he was exposed to, and worked around various industrial noises. The Veteran also indicated working in close proximity to active runways and aircraft activity, installing and maintaining fire hydrants. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Word List test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” for VA purposes at that time, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. A review of the Veteran’s service treatment records (STRs) confirms the circumstances of his service as well as occupational noise exposure. Specifically, the Veteran’s STRs illustrate that as a result of his MOS, the Veteran underwent regular occupational physicals, including audiogram tests. In addition to those examinations, the Veteran was counseled on hazardous noise exposure, advised to wear hearing protection, and notified of dangers of such exposure. These reports confirm in-service noise exposure. The Veteran’s service treatment records (STRs) contain normal audiometry test results taken in October 1976, November 1980, February 1981, May 1988, June 1988, November 1989, March 1994, February 1995, and January 1996. Each time there was no significant threshold shift noted. A September 1991 audiometry test indicates a significant threshold shift in the left ear only, with no significant threshold shift on follow up testing. The March 1993 audiometry test likewise indicates that the Veteran had a significant threshold shift in the left ear and he was counseled on enforcement of hearing protection. He did not have any significant threshold shifts on follow up examination. The Veteran’s STRs do not contain an audiometry exam at discharge. It is unclear whether the Veteran was provided with one. An April 2014 private audiometry examination taken as part of the Veteran’s employment hearing conservation program lists the Veteran’s right ear puretone thresholds as follows: Hertz 500 1000 2000 3000 4000 Right 45 25 15 30 20 The private April 2014 audiometry exam indicates that the Veteran’s results did not show a standard threshold shift with age correction. In December 2014, the Veteran underwent a VA examination for his claim. The puretone thresholds recorded during the VA examination were as follows: Hertz 500 1000 2000 3000 4000 Right 25 25 15 25 20 Speech discrimination score was 96 percent in the right ear. The VA examiner determined that the Veteran had normal hearing in his right ear. The VA examiner also noted that right ear hearing loss did not exist prior to service and that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz. A February 2019 private treatment note from Bayhealth Audiology clinic indicates that the Veteran was seen for an evaluation for hearing loss. The Veteran reported that in December 2018 he had an upper respiratory infection and noticed having some decreased hearing mostly on his right side. The Veteran reported the decreased hearing being constant and daily. He also reported trying over-the-counter medication without any significant improvement. The Veteran’s right ear puretone thresholds were listed as: Hertz 500 1000 2000 3000 4000 Right 35 25 20 35 25 The private treatment note indicates that the Veteran has right mild low frequency conductive hearing loss sloping to moderately severe starting at 4000 Hz. It was noted that the Veteran had evidence of a mild conductive hearing loss on the right in the low frequencies due to some eustachian tube dysfunction. He was recommended to use Flonase and prednisone taper with follow up in one month. A March 2019 Bayhealth Audiology treatment note indicates that the Veteran was seen for follow up. It was noted that he continued to have difficulty with pressure and some decreased hearing in his right ear. The Veteran indicated that prescribed medication did not improve his symptoms which started after the beginning of the year. The Veteran’s right ear puretone thresholds were listed as: Hertz 500 1000 2000 3000 4000 Right 35 25 20 35 25 The note indicated that the Veteran continued to have evidence of right eustachian tube dysfunction. It was recommended that he undergo right myringotomy. An April 2019 Bayhealth Audiology treatment note indicates that the Veteran was seen for a postoperative follow up after his right myringotomy. It was noted that the Veteran continues to have difficulty with a right tympanic membrane perforation and that his hearing did not change with the diagnostic myringotomy. It was noted that it is likely that an ossicular problem is causing his conducive hearing loss. The impression was chronic otitis media with effusion. His right ear puretone thresholds were listed as: Hertz 500 1000 2000 3000 4000 Right 35 25 20 35 25 A May 2019 Bayhealth Audiology treatment note indicates that the Veteran was seen for follow up. It was noted that the Veteran was initially diagnosed with eustachian tube dysfunction and underwent a right myringotomy. It was also noted that the Veteran’s tympanic membrane perforation had healed but symptoms of hearing loss did not improve and that he continues to have difficulty with ringing in his ears and decreased hearing. It was noted that the Veteran may have some ossicular issues due to his conductive hearing loss and was scheduled for follow up. In October 2019, the Veteran underwent a VA examination for his claim. His right ear puretone thresholds were listed as: Hertz 500 1000 2000 3000 4000 Right 50 30 30 40 30 The Veteran’s right ear speech discrimination score was 76 percent. The Veteran was diagnosed with right ear sensorineural hearing loss. The VA examiner reviewed the Veteran’s records and concluded that it is less likely than not that the Veteran’s right ear hearing loss was caused by military service. The VA examiner summarized the Veteran’s contentions with respect to in-service noise exposure and indicated that the Veteran was provided in-service hearing protection which he did not always utilize. The Veteran reported using hearing protection during noise exposure at work after discharge. The VA examiner noted that separation audiogram was not located. The VA examiner also noted that the December 2014 audiogram showed essentially normal hearing in the right year. The VA examiner indicated that since early 2019, the Veteran’s records show that he has chronic middle year problems and has been following up with a private clinic. The VA examiner indicated that given the asymmetry and documented middle-ear problems, it is at least as likely as not that his hearing loss is caused by right ear middle-ear pathology and less likely than not that it is caused by or the result of his military service. With respect to reconciling the results of the April 2014 private audiometry examination and the December 2014 VA examination, the VA examiner indicated that the Veteran showed good reliability of test results, and puretone averages consistent with measured speech recognition thresholds. The VA examiner also noted that air and bone conduction thresholds were in good agreement, that the results were double checked, and that the Veteran was consistent with his responses. The VA examiner also noted that all equipment utilized was within current calibration. Further, the VA examiner indicated that the Veteran no instances of injuries could be found in his records and the December 2014 VA audiogram showed essentially normal right ear hearing. The VA examiner concluded that the changes seen in the Veteran’s right ear today are likely due to middle-ear pathology, which is documented in his records. The VA examiner noted that the Veteran reported his hearing difficulties beginning 3 to 5 years ago. The VA examiner also noted that the Veteran did not report his hearing loss having an onset during service or within one year of discharge. Based on a review of the entire record, the preponderance of the evidence is against the claim. The record shows that the Veteran has a current right ear hearing loss disability for VA purposes. The record also shows that the Veteran was exposed to hazardous noise in service. Thus, the remaining question is whether there is a nexus between the Veteran’s right ear hearing loss and his service. In this regard, the October 2019 VA medical opinion indicates that the Veteran’s right ear hearing loss is less likely than not related to service. It also indicates that it is at least as likely as not that the Veteran’s right ear hearing loss is related to his middle-ear pathology, as documented in his records. Finally, the VA examiner also determined that the Veteran’s right ear hearing loss did not have its onset in service and did not manifest to a compensable degree within one year of discharge. The VA examiner supported this opinion with a thorough and accurate review of the Veteran’s records. The VA examiner also addressed the Veteran’s contentions, took his reports into consideration, and provided a full rationale for all conclusions reached. For example, the VA examiner indicated that the Veteran’s right ear hearing loss had its onset approximately 5 years ago and is related to the Veteran’s middle-ear pathology, which is consistent with what the private audiological records show as summarized above. The Veteran’s private treatment records indicate that the Veteran was treated for complaints of right ear hearing loss in February 2019, at which point he reported onset being several months prior. Moreover, these records indicate that the Veteran’s right ear hearing loss was attributed to his middle-ear pathology. For these reasons, the October 2019 VA medical opinion is afforded the highest probative value in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s assertions with respect to gradually developing hearing loss after discharge have been taken into consideration. He is competent to report observable symptoms of decreased hearing. However, he is not competent to diagnose right ear hearing loss for VA purposes under appropriate regulations, or to provide a medical opinion linking his right ear hearing loss to service. The etiology of hearing loss is a complex medical issue, requiring knowledge of audiology and ability to interpret clinical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). In this case, while the Veteran indicated that his hearing was gradually declining after service, there were no complains or symptoms noted until 2014. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document event in dispute); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). The evidence overall weighs against a continuity of symptomatology or continuous symptoms since service. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). Moreover, to the extent that the Veteran is competent to opine as to the complex medical matters of the etiology of his hearing loss, the Board finds the specific, reasoned October 2019 VA medical opinion above to be of greater probative weight than the more general lay assertions in this regard. King v. Shinseki, 700 F.3d 1339, 1345 (Board may assign greater weight to medical evidence over lay evidence) (Fed. Cir. 2012). Of note, the April 2014 private audiometry test indicates right ear hearing loss for VA purposes in the 500 Hz frequency. A subsequent December 2014 VA audiometry test indicates that the Veteran did not have right ear hearing loss for VA purposes. The October 2019 VA examiner concluded that both results are valid and consistent with the evidence in this case. Specifically, the VA examiner noted that the Veteran had right ear hearing loss at the 500 Hz frequency only and the December 2014 VA audiometry results showed that the Veteran’s right ear hearing was essentially normal. The Veteran reported noticing hearing loss 3 to 5 years prior to his October 2019 VA examination. Thus, it is reasonable to infer that the Veteran had some problems with hearing several years prior to the October 2019 VA examination. Nevertheless, presence of a current disability has been established, and the Veteran himself reported not noticing hearing loss until years after service. While the Veteran’s audiometry testing at discharge is not available in this case, the available records establish that the Veteran’s current right ear hearing loss did not have its onset until years after service. In this regard, the Veteran has reported that his hearing difficulties started approximately 5 years ago, which was 15 years after discharge. Thus, availability of discharge audiometry testing results would not establish continuity of symptomatology or cure the Veteran’s claim. In other words, in the event the Veteran’s hearing loss was noted at discharge, it would not warrant a finding of a nexus as the Veteran himself reported hearing loss beginning 5 years ago. The Veteran’s private treatment records support this contention. The records also indicate that his right ear hearing loss is of an unrelated etiology. In sum, the preponderance of the evidence is against the finding that the Veteran’s right ear hearing loss had its onset in service, manifested to a compensable degree within one year of discharge, or is otherwise causally related to service. The benefit of the doubt doctrine is therefore not of application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 10 percent for the service-connected cervical spine disability prior to June 20, 2014, and in excess of 20 percent thereafter. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38C.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 38C.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.”). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38C.F.R. §4.59, painful motion is a factor to be considered with any form of arthritis; however, 38C.F.R. §4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran has been assigned a 10 percent disability rating under 38 C.F.R. § 4.71a DC 5242 for the period on appeal before June 20, 2014 and a 20 percent disability rating for the period on appeal from June 20, 2014. Disabilities of the spine are rated pursuant to the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a. In addition, Intervertebral Disc Syndrome (IVDS) under DC 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, a 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5240, 5242. For VA compensation purposes, 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. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a , Plate V. 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. 38 C.F.R. § 4.71a , Diagnostic Codes 5240, 5242, Note (2). The normal combined range of motion of the cervical spine is 340 degrees. Id. The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Alternatively, the Veteran’s cervical spine disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which provides for a 10 percent evaluation where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a , DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). The General Rating Formula provides a schedule of ratings for spine disabilities 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 an injury or disease. Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application. In this case, there is no evidence of disc herniation or irritation of the adjacent nerve root. However, given that the current appeal was pending as of February 7, 2021, a rating under Diagnostic Code 5243 for IVDS may still be available in the absence of disc herniation or irritation of the adjacent nerve root even after the effective date of the amendment if the old rating criteria yield a more favorable result than the new criteria. Given that the application of the new criteria eliminates entitlement to a rating under Diagnostic Code 5243, consideration of a rating under DC 5243 is effectively eliminated. As such, the old criteria are more favorable in this case and will be applied for the full period on appeal. A February 2014 private MRI from Bayhealth indicates age commensurate degenerative changes with anterior osteophytosis at C5-7 along with mild C4-5 hypertrophic changes with mild neural foraminal encroachment. A May 2014 private treatment note from the Delaware spine institute indicates that the Veteran received epidural neck injections. It was noted that the Veteran had persistent neck pain despite aggressive conservative care consisting of oral analgesics, anti-inflammatories, and physical therapy. In December 2014, the Veteran underwent a VA examination for his claim. He was diagnosed with DDD of the cervical spine. He reported increasing neck pain and constant aching, which gets worse with lifting. The Veteran reported heating pad and aspirin providing some alleviation. It was also noted that the Veteran’s pain was treated with injections which provided temporary relief. The Veteran reported flare ups forcing him to sit down and rest. The Veteran’s forward flexion was to 45 degrees, extension to 35 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 45 degrees. The VA examiner noted that range of motion does not contribute to functional loss. Pain was noted on extension. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing without any additional functional loss or loss of range of motion. The VA examiner concluded that there is no additional functional loss or loss of range of motion with repetitive use over time based on the Veteran’s reports. The VA examiner noted that pain significantly limits functional ability with repeated use over time and indicated that describing the limitation in terms of range of motion would result in speculation. Flare ups were noted to occur twice per month for a duration of 3 days during which the Veteran experiences 8 out of 10 pain. The VA examiner noted that pain significantly limits functional ability during flare ups but was unable to describe the limitation in terms of range of motion, as that would result in speculation. There was no localized tenderness, guarding, or muscle spasms. Muscle strength testing, reflex examination, and sensory examination were all normal. There was no muscle atrophy. There was no radicular pain and no ankylosis. There were no other neurologic abnormalities and no incapacitating episodes due to IVDS. The Veteran was not noted to use any assistive devices. The VA examiner noted imaging studies confirming arthritis. Under functional impact, the VA examiner noted that the Veteran had pain with repeated lifting or heavy lifting. A March 2019 private otolaryngology note indicates that the Veteran was seen for a follow up. The Veteran’s physical examination revealed that his trachea was normal, and that his neck range of motion was normal. His passive range of motion was noted to be full without pain. In October 2019, the Veteran underwent a VA examination for his claim. He was diagnosed with degenerative arthritis of the spine, spinal stenosis, and vertebral fracture. It was noted that the Veteran was diagnosed in 1999 with supporting x-rays. The x-ray findings were summarized. It was noted that the Veteran’s disability slowly progressed causing him to seek care in 2010 and 2014. The Veteran was noted to have monthly flare ups for which he limits his activities and takes over-the-counter medications. It was noted that during flare ups the Veteran is unable to go into work and instead works from home as he is a supervisor. The Veteran’s forward flexion was to 40 degrees, his extension to 30 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees. The VA examiner noted no pain on exam and range of motion itself not contributing to functional loss. There was objective evidence of localized tenderness or pain on palpation in the posterior cervical spine from C3-C7. There was no evidence of pain with weight bearing. The Veteran was able to perform 3 repetitions without additional loss of function. The VA examiner concluded that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The VA examiner estimated that range of motion is the same with repeated use over time. With respect to flare ups, the VA examiner concluded that pain and lack of endurance significantly limit functional ability with flare-ups. The VA examiner indicated that no further range of motion loss is anticipated with flare ups, only increased symptoms. There was no guarding or muscle spasms. Less movement than normal was listed to be an additional factor, and the VA examiner indicated that the Veteran had a chronic limited range of motion suggestive of scarring in his cervical spine without rest, guarding, or tenderness. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy. Reflex and sensory examinations were normal. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis and no neurologic abnormalities. No incapacitating episodes due to IVDS were noted. The Veteran was not noted to use any assistive devices. The VA examiner noted that arthritis was shown on x-ray, but that there was no cervical vertebral fracture with loss of 50 percent or more of height. The VA examiner concluded that the Veteran’s disability impacts work as it limits his ability to change position from standing to kneeling and back. The VA examiner noted no objective evidence of pain on nonweight bearing, with passive range of motion testing being the same as active range of motion. In July 2020, the RO obtained an addendum VA opinion based on the October 2019 VA examination. The purpose of the VA addendum opinion was to clarify the diagnosis of spinal stenosis and vertebral fracture and to determine whether it is related to active duty or worsening of his service-connected DDD of the cervical spine. The VA examiner reviewed the October 2019 VA examination report and noted that a June 1999 imaging study showed that the Veteran’s C6 is wedge deformed, with intervertebral disc space between C6 and C7 narrowed. The VA examiner noted that the study showed anterior spurs at the same levels, and posterior spurs with some encroachment of the intervertebral foramena between C3 and C4 and C4 and C5 on the left side. The VA examiner also noted the August 2010 EMG and February 2014 imaging studies. The VA examiner indicated that foraminal stenosis and wedge fracture were documented in the June 1999 imaging studies, which were taken shortly after the April 1999 discharge. The VA examiner also indicated that the degree of abnormality illustrated in the June 1999 imaging studies is long term and not something that would have occurred in the two months between separation and the studies. The VA examiner concluded that cervical spinal stenosis is service-connected, and that the findings in the October 2019 VA examination report represent a worsening of the Veteran’s DDD of the cervical spine. Before June 20, 2014. For the period on appeal before June 20, 2014, the Veteran’s cervical spine disability more nearly approximated the criteria for the assignment of a 20 percent disability rating. The evidence illustrates that Veteran had persistent neck pain despite aggressive conservative treatment, flare ups, and symptoms more nearly approximating forward flexion greater than 15 degrees but not greater 30 degrees and total combined range of motion of the cervical spine not greater than 170 degrees. While there are no range of motion readings available for this period on appeal, the totality of the evidence illustrates that the Veteran’s symptoms were of such severity and frequency as to more nearly approximate the criteria for the assignment of a 20 percent disability rating. In other words, given the Veteran’s competent reports of constant worsening neck pain, it is likely that his range of motion of the cervical spine more nearly approximates forward flexion to greater than 15 degrees and not greater than 30 degrees or total combined range of motion of the cervical spine not greater than 170 degrees, when considering additional functional loss during flare ups. A rating in excess of 20 percent is not warranted at any time during the period on appeal under DC 5242. The record does not reflect either (i) favorable ankylosis of the entire thoracolumbar spine or (ii) forward flexion of the cervical spine limited to 15 degrees or less. Therefore, the criteria for the assignment of a rating in excess of 20 percent under DC 5242 have not been met or approximated at any time during the appeal period. Likewise, the Veteran is not entitled to a rating in excess of 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes as the evidence indicates that the Veteran does not suffer incapacitating episodes of IVDS requiring physician-prescribed bedrest as a result. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Staged ratings are not warranted for the Veteran’s back disability as his symptoms remained largely consistent throughout this period on appeal.  The medical evidence of record did not show bladder or bowel impairment related to the service-connected cervical spine disability. There is also no evidence suggesting any neurological manifestations. In sum, the preponderance of the evidence shows that the Veteran’s symptoms are of the severity and frequency contemplated in the criteria for the assignment of a 20 percent disability rating. As such a disability rating of 20 percent, but no higher, for the service-connected cervical spine disability is warranted for the period on appeal before June 20, 2014. From June 20, 2014. For the period on appeal from June 2014, onward, a disability rating in excess of 20 percent for the service-connected cervical spine disability is not warranted. Specifically, the December 2014 VA examination report illustrates forward flexion to 45 degrees, March 2019 private treatment note illustrates full range of motion, and the October 2019 VA examination report illustrates forward flexion to 40 degrees. Functional loss with repeated use over time and during flare ups has been considered. Specifically, the VA examination reports indicate that the Veteran experiences flare ups several times per month during which he has increased pain, that his disability impacts his ability to change position from a standing to kneeling position and back, and that pain and lack of endurance significantly limit functional ability with repeated use over time. However, there is no indication that the additional functional loss manifests in forward flexion of the cervical spine limited to 15 degrees or less. Moreover, there is no evidence of ankylosis, and no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the period due to IVDS. Staged ratings are not warranted for the Veteran’s back disability as his symptoms remained largely consistent throughout this period on appeal.  The medical evidence of record did not show bladder or bowel impairment related to the service-connected cervical spine disability. There is also no evidence suggesting any neurological manifestations. Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected cervical spine disability for the period on appeal from June 20, 2014 have not been met. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.