Citation Nr: 21024343 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-38 651A DATE: April 22, 2021 ORDER A rating in excess of 20 percent prior to August 6, 2018, and a rating in excess of 30 percent thereafter (excluding periods of temporary total disability), for the service-connected cervical spine disability, is denied. FINDINGS OF FACT 1. The evidence of record indicates that prior to August 6, 2018, the Veteran did not have forward flexion of the cervical spine limited to 15 degrees or less. 2. At no time has the evidence shown the Veteran to have cervical spine ankylosis to any degree. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to August 6, 2018, and a rating in excess of 30 percent thereafter (excluding periods of temporary total disability), for the service-connected cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5241-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1988 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in August 2018 and again in October 2020. The claim is now again before the Board. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, the Veteran was initially awarded service connection for cervical disc disease by way of a February 1998 rating decision. An initial 20 percent evaluation was assigned, effective July 2, 1997. The Veteran filed this claim for an increased rating in August 2011. During the pendency of this appeal, the RO issued a rating decision in November 2018 granting a higher 30 percent rating for the Veteran’s service-connected cervical spine disability, effective August 6, 2018. As this does not represent the maximum rating available and the Veteran has not indicated satisfaction of his appeal after this award, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board observes that the Veteran has also been assigned 100 percent ratings under 38 C.F.R. § 4.30 for the period between May 7, 2012 and November 30, 2012, and between August 4, 2015, and September 30, 2015. Thus, the question before the Board is whether a rating in excess of 20 percent is warranted prior to May 7, 2012; between December 1, 2012 and August 3, 2015; and between October 1, 2015 and August 5, 2018; and whether a rating in excess of 30 percent is warranted from August 6, 2018 to the present. The Veteran’s cervical spine ratings are assigned under 38 C.F.R. § 4.71, Diagnostic Code (DC) 5241-5237. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Veteran’s cervical spine disability is rated for his spinal fusion (DC 5241) with cervical strain (DC 5237). Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. All diseases and injuries of the spine, other than IVDS, are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the Formula for Rating IVDS based on incapacitating episodes. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003. The new rating criteria direct ratings under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by X-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, the 20 percent rating currently assigned for the cervical spine disability is warranted with forward flexion of the cervical spine of 30 degrees, but not greater than 40 degrees. For an increase to 30 percent, the evidence must show forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. For an increase to 40 percent, the evidence must show unfavorable ankylosis of the entire cervical spine. The only higher schedular ratings for the spine under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. 38 C.F.R. § 4.71a. Under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, for an increase to 40 percent, the evidence must show incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The current version of DC 5243 for IVDS instructs adjudicators to assign that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. Turning to the evidence of record, again, this claim has been pending since August 2011. In November 2020, the Veteran was afforded a VA examination which included a retrospective medical opinion addressing, to the extent possible, the Veteran’s cervical spine range of motion findings based on passive motion, pain with weight bearing, and pain with non-weight bearing from November 2010 through November 2018. The examiner noted in the examination report that the Veteran’s documents from November 2010 through November 2018 were reviewed. Based on those records the November 2020 examiner determined that in January 2011 the Veteran’s range of motion was decreased on every plane; specifically, flexion at 30 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right rotation limited to 15 degrees. The Veteran’s January 2011 VA examination did note that the Veteran experienced muscle spasm and pain. The November 2020 examiner also reviewed the Veteran’s 2012 records, noting that the Veteran underwent cervical fusion in 2012 at the C3 and C4. The Veteran’s range of motion for his cervical group increased a fair amount of degrees across all planes during the 2014 VA examination. The June and September 2014 VA examination indicated the Veteran’s forward flexion of the cervical spine was 30 degrees. At that time the Veteran’s examination showed no radiculopathy. The November 2020 examiner noted that the records indicated that the Veteran was using narcotic pain medications which can explain the Veteran’s increased range of motion and possibly relief from pain due to surgical intervention in 2012. The November 2020 examiner noted that there was no evidence that the Veteran experienced pain with weight bearing or at rest but rather pain was present in all planes. The November 2020 examiner noted the Veteran had another cervical fusion in 2015. The Veteran’s range of motion was reduced to the previous level prior to 2012. The November 2020 examiner estimated that the reduced range of motion for extension and flexion was near or around 25 to 30 degrees. The November 2020 examiner determined that after 2015 there wasn’t evidence to show that the Veteran’s range of motion would have been reduced much past previous levels. The November 2020 examiner indicated that when considering range of motion after his surgery in 2015 the Veteran’s documents are largely devoid of notations of functional loss, but note lower back pain and medication management. The November 2020 examiner also noted that at least the Veteran's extension would be 20 degrees of extension and flexion. The November 2020 examiner noted that with regard to the Veteran's rotation it was found during a recent study that, generally, across the amount of individuals studied, individuals who undergo multi-level anterior fusion, which is what the Veteran underwent, the greatest planes of range of motion with improved function was flexion with the least return of function in extension. Additionally, it was found that after the initial reduction in range of motion post operation, an improvement in range of motion was found on all planes. The examiner determined, that it is fair to assume that the Veteran's range of motion was at least 20 degrees for extension and at least 20 degrees for flexion; however, as a result of the hardware present his range of motion for lateral flexion, right and left, to at least be at or around 15 degrees and rotation right and left to be around 20-30 degrees. Therefore, there would be no great new loss of function compared to the initial range of motion that was noted in 2012 which was improved in 2014 outside of 10-15 degrees plus or minus until at least 2018. Pursuant to the Veteran’s records, and the assessment and retrospective opinion formulated by the November 2020 VA examiner, the Veteran’s forward flexion of the cervical spine was primarily 30 degrees for the entire period prior to August 6, 2018, with some indication of a lower degree of motion, but not limited to 15 degrees or less. Again, under the general rating formula, for a 30 percent rating for the cervical spine forward flexion must be limited to 15 degrees or less. The Board finds that the preponderance of the evidence indicates that a rating higher than 20 percent disabling is not justified for the period prior to August 6, 2018. As for the period since August 6, 2018, the Board has thoroughly reviewed the Veteran’s record and has determined that the Veteran is not entitled to a disability rating in excess of 30 percent after August 6, 2018. The November 2018 VA examination report shows the Veteran’s forward flexion was 10 degrees, extension was 5 degrees, right lateral flexion was 20 degrees, left lateral flexion was 20 degrees, right lateral rotation as 40 degrees and left lateral rotation was 40 degrees. The November 2018 examiner also found that the Veteran did have pain on the examination which caused functional loss. The examiner noted pain, weakness, fatigability limit functional ability with repeated use over a period of time. The examiner noted that there was no sign of ankylosis of the spine. The November 2018 examiner opined that although the Veteran complains of intermittent pain, there is insufficient objective evidence to support a right upper extremity radiculopathy diagnosis. The examiner also found under the Correia criteria that there is objective evidence of pain when the neck is used in non-weight bearing. The examiner found that the passive range of motion for the neck was found to be the same as the active range of motion. In November 2020, the Veteran was afforded another VA examination in which the examiner conducted range of motion testing. The examiner determined that the Veteran’s forward flexion was 10 degrees, extension 10 degrees, right lateral flexion was 10 degrees, left lateral flexion was 10 degrees, right lateral rotation was 10 degrees and left lateral rotation was 5 degrees. The examiner noted that the Veteran did have pain during the examination and that the pain did cause functional loss. The examiner determined that the Veteran’s statements describing functional loss with repetitive use over time was medically consistent with the physical examination. The November 2020 examiner noted that pain weakness and fatigability significantly limit functional ability with flare ups. The Veteran’s pain was described in terms of range of motion and the forward flexion was determined to be 5 degrees. The November 2020 examiner also noted that the Veteran’s reduced range of motion and pain prevent him from working in positions that require observation: specifically operating heavy machinery, truck driving or even guard duty. The examiner noted that the Veteran’s complaint of symptoms and signs of radiculopathy were not associated with substantial objective findings. The Veteran’s reflexes were globally reduced and even, the Veteran’s sensation was globally intact, as was his strength. The examiner opined that it wasn’t appropriate to diagnose the Veteran with radiculopathy without objective findings. The examiner did comply with the Correia criteria. The examiner determined that there was no objective evidence of pain on non-weight bearing. The examiner also opined that passive range of motion for the neck could not be performed or was not medically appropriate. Again, for a rating in excess of 30 percent for the cervical spine, the evidence must show ankylosis. As there is no evidence to show the Veteran’s cervical spine is ankylosed, there is no basis for awarding a rating in excess of 30 percent since August 6, 2018. The Veteran is not noted to have IVDS in relation to his cervical spine; thus, a higher rating under those criteria are not warranted. Moreover, the amended musculoskeletal regulations provide no basis for an increase. The Veteran’s claim for a rating in excess of 20 percent prior to August 6, 2018, and a rating in excess of 30 percent thereafter, for the service-connected cervical spine disability is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C.§ 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.