Citation Nr: 21025348 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 08-19 769A DATE: April 27, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for the period prior to July 6, 2011 for degenerative disc disease of the cervical spine and in excess of 20 percent from that date is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy to include the continuation of a separate rating for neuritis effecting the external popliteal nerve (common peroneal) is remanded. FINDINGS OF FACT 1. Prior to July 6, 2011, Veteran’s cervical spine disability was not shown to have been manifested by forward flexion of the cervical spine limited to 30 degrees or less; combined range of motion less than 170 degrees; or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks during a 12 month period. 2. From July 6, 2011, the Veteran’s cervical spine was to show to have been manifested by forward flexion of the cervical spine limited to 15 degrees or less; favorable ankylosis of the entire cervical spine; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks during a 12-month period. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine prior to July 6, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating in excess of 20 percent for degenerative disc disease of the cervical spine from July 6, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to May 1984.      This case has been before the Board multiple times, most recently in November 2020 when it was remanded for additional developments.  The Board finds there has been substantial compliance with the remand in connection with the claim decided here and the Board will proceed to adjudication.  Stegall v. West, 11 Vet. App. 268 (1998).   Entitlement to an initial rating in excess of 10 percent for the period prior to July 6, 2011 for degenerative disc disease of the cervical spine and in excess of 20 percent from that date The Veteran seeks higher initial ratings for his service-connected cervical spine disability. His cervical spine disability has been rated as 10 percent disabling from August 30, 2006 and as 20 percent disabling from July 6, 2011, under 38 C.F.R. § 4.71a Code 5243. Disability ratings 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. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Board concludes that a higher rating is not warranted for the Veteran’s neck disability at any time during the period on appeal. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Codes 5235-5242. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). During the pendency of the Veteran’s claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The changes do not impact the general rating formula or the rating criteria specific to IVDS and evaluation of the neck disability under the pre- and post-February 7, 2021 regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 injury or disease, 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 rating of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , Code 5237. For VA compensation purposes, normal forward flexion of the cervical spine is 45 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right lateral rotation to 80 degrees. General Rating Formula for Diseases and Injuries of the Spine, Note 2.38 C.F.R. § 4.71a , Codes 5235-5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a , Codes 5235-5242, Note (4). “Combined range of motion” is the sum of the ranges of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. Normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a , General Rating Formula, Note 2, and Plate V. Under the rating criteria in effect prior to February 2021, For purposes of evaluations under Code 5243 based on IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (1). Under the new criteria, Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is assigned for all other disc diagnoses; the formula for rating IVDS is unchanged. On June 2008 VA examination, cervical strain, degenerative joint disease, and degenerative disc disease were diagnosed. The Veteran reported that he had pain in the back of his neck which wrapped around to the top of his head and was more or less continuous. He reported having flares, but he could not describe them. His flare-ups occur every other day, lasting all day, which limit him from lifting weights at home or at work, but he could still do some exercises. On range of motion testing, forward flexion was to 40 degrees; extension, 25 degrees; right lateral flexion, 30 degree; left lateral flexion, 30 degrees; right lateral rotation, 50 degrees, and; left lateral rotation, 45 degrees. The examiner noted that all motion caused mild pain in the neck and the Veteran was only able to perform range of motion testing once due to increasing pain. In a June 2008 rating decision, service connection was granted and a 10 percent rating assigned for cervical strain, degenerative joint and disc disease was granted an assigned a 10 percent evaluation, effective August 30, 2006. On July 2011 VA examination, the Veteran reported increasing neck pain, which was sharp, constant, and rated as 9 out of 10. The examiner noted there was associated weakness, fatigue, instability, lack of endurance, stiffness, heat, swelling, locking and instability, but no redness. It was worst with holding his arms up and turning but improved with rest. He was on pain medications but no steroids. He had no restrictions, but difficulty at times dressing and bathing and with active daily living. He reported having severe flare-ups that would occur twice weekly with incapacitating episodes, that would last for the whole day. On active range of motion testing forward flexion was to 30 degrees; extension was to 20 degrees, bilateral lateral flexion was to 25 degrees, and bilateral rotation was to 40 degrees. There was an absence of pain, weakness, fatigability, incoordination, and instability. He was able ot perform range of motion testing three times with no additional loss of function. In an August 2013 rating decision, the rating for the cervical spine disability was increased to 20 percent, effective July 6, 2011, the date of the VA examination. On September 2015 VA contract examination, the Veteran reported having flare-ups of his cervical spine with overhead activities and repetitive emotions. During flare-ups he had pain with any motion of the neck and decreased range of motion. On active range of motion testing, forward flexion was to 20 degrees; extension, 30 degrees; right lateral flexion, 25 degrees; left lateral flexion, 30 degrees; right lateral rotation, 20 degrees, and; left lateral rotation, 30 degrees. The examiner noted that the Veteran had pain on all range of motion which caused functional loss, but did not note where pain began and ended. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. The examiner noted that the examination was not being conducted during a flare-up and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that pain and weakness caused functional loss during flare-ups. The examiner estimated that during flare-ups, forward flexion was to 20 degrees, extension was to 30 degrees, right lateral flexion was to 25 degrees, left lateral flexion was to 30 degrees, right lateral rotation as to 20 degrees, and left lateral rotation was to 30 degrees. He had muscle spasms and localized tenderness, which did not result in abnormal gait or abnormal spinal contour. The examiner noted the Veteran did not have ankylosis or IVDS of the cervical spine. The examiner opined that the Veteran’s cervical spine condition impacted his ability to work because he was limited in performing overhead lifting, rapid movements of the neck, bending and twisting of the neck, and prolong sitting or driving that can cause stiffness. On February 2019 VA examination, the Veteran reported having flare-ups of his cervical spine consisting of increased pain and decreased range of motion, and reported that during flare-ups he had problems working overhead and looking up. On active range of motion testing, forward flexion was to 45 degrees, extension was to 45 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, right lateral rotation as to 60 degrees, and left lateral rotation was to 60 degrees. Range of motion contributed to functional loss as he had to turn his body to look to either side. The examiner noted that the Veteran had pain on right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation which caused functional loss, but did not note where pain began and ended. The examiner also noted that passive range of motion was the same as active range of motion. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. After repetitive use, pain caused functional loss. The examiner estimated that after repetitive use, forward flexion was to 45 degrees, extension was to 45 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, right lateral rotation as to 60 degrees, and left lateral rotation was to 60 degrees. The examiner noted that during flare-ups the Veteran had pain which caused functional loss. The examiner estimated that during flare-ups, forward flexion was to 35 degrees, extension was to 35 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 15 degrees, right lateral rotation as to 45 degrees, and left lateral rotation was to 45 degrees. He did not have muscle spasms or guarding. The examiner noted the Veteran did not have IVDS of the cervical spine. The examiner opined that the Veteran’s cervical spine did not impact his ability to work. On September 2020 VA examination, the Veteran reported his neck disability had gotten worse. He reported having flare-ups with increased pain and decreased range of motion, with functional loss of difficulty driving because of decreased range of motion and problems with looking down because of a loss of flexion. On active range of motion testing, forward flexion was to 40 degrees, extension was to 15 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, right lateral rotation as to 45 degrees, and left lateral rotation was to 45 degrees. His range of motion contributed to functional loss as it interfered with driving and looking down. The examiner also noted that passive range of motion was the same as active range of motion. The examiner noted the Veteran had pain on all range of motion which resulted in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. The examiner estimated that after repetitive use, forward flexion was to 35 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 40 degrees, and; left lateral rotation to 40 degrees. The examiner noted that during flare-ups the Veteran had pain which caused functional loss. The examiner estimated that during flare-ups, forward flexion was to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees left lateral flexion to 10 degrees right lateral rotation to 35 degrees, an left lateral rotation was to 35 degrees. The Veteran did not have guarding or muscle spasm of the cervical spine. The examiner specifically noted he did not have ankylosis of the cervical spine. The Veteran had IVDS of the cervical spine, but he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The examiner opined that the Veteran’s cervical spine disability impacted his ability to work because he had difficulty looking up or down and difficulty driving. On February 2021 VA examination, the Veteran reported having severe flare-ups of his cervical spine disability occurring six times per month, lasting from 15 to 30 minutes, and consisting of increased pain and decreased range of motion. They were precipitated by activity, if he moved the wrong way, and alleviated by Tylenol with codeine. He reported functional loss during flare-ups as he was unable to look down for any prolonged time, and that he had very limited range of motion until his flare-up subsided. On active range of motion testing, forward flexion was to 40 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 45 degrees, and; left lateral rotation to 45 degrees. His range of motion contributed to functional loss as it interfered with driving and looking down. The examiner also noted that passive range of motion was the same as active range of motion. The examiner noted the Veteran had pain on all range of motion which resulted in functional loss, but that the limitation due to pain did not have a different degree endpoint to active range of motion testing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. The examiner estimated that after repetitive use, forward flexion was to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 40 degrees, and; left lateral rotation was to 40 degrees. The examiner noted that during flare-ups the Veteran had pain which caused functional loss. The examiner estimated that during flare-ups, forward flexion was to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 35 degrees, and; left lateral rotation to 35 degrees. The examiner note the veteran had localized tenderness due to arthritis, but it did not result in abnormal gait or abnormal spinal contour. The examiner note the Veteran did not have ankylosis of the cervical spine. The Veteran had IVDS of the cervical spine, but he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The examiner opined that the Veteran’s cervical spine disability impacted his ability to work because he had difficulty looking down and difficulty driving. Based on a review of the record, the Board concludes that higher ratings for the Veteran’s cervical disability are not warranted for any period on appeal. For the period prior to July 6, 2011, an initial rating in excess of 10 percent is not warranted. At no time during this period had the Veteran demonstrated forward flexion of the cervical spine less than 30 degrees or combined range of motion less than 170 degrees, even with consideration of pain. There is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. On June 2008 VA examination, forward flexion was to 40 degrees and combined range of motion was 220 degrees. For the period from July 6, 2011, a rating in excess of 20 percent is not warranted. At no time during this period has the Veteran demonstrated forward flexion of the cervical spine less than 15 degrees or ankylosis of the cervical spine. Even with consideration of pain on motion, after repetitive use testing, and during flare-ups, forward flexion was to, at worst, 20 degrees. See September 2015 VA contract examination. Additionally, there was no evidence of ankylosis during this period. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  The Veteran retained movement on all VA examinations and the examiners specifically found he did not have ankylosis. Additionally, the Board has considered whether higher ratings are warranted under Code 5243 for IVDS. While the September 2020 and February 2021 VA examiners indicated the Veteran had IVDS they noted that he did not have episodes of bed rest and there is no evidence in the record during the period on appeal of bed rest prescribed by a physician. Accordingly, higher ratings are not warranted for any period under Code 5243 for IVDS. In deciding the claim, the Board has also considered the Veteran’s lay statements that his cervical spine symptoms were worse than currently evaluated.  He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology.  The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because otherwise the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a.  REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy to include the continuation of a separate rating for neuritis effecting the external popliteal nerve (common peroneal) is remanded. There has not been substantial compliance with the Board’s previous remand directives regarding the issue of a higher rating for the Veteran’s right lower extremity radiculopathy. As specifically noted in the prior two Board remands, the Agency of Original Jurisdiction (AOJ) changed the Diagnostic Code for the service-connected right lower extremity radiculopathy form Diagnostic Code 8621 for neuritis of the external popliteal nerve (common peroneal) to Diagnostic Code 8520 for incomplete paralysis of the sciatic nerve. See September 2017 rating decision. The Board remanded in October 2019 and November 2020 for the AOJ to clarify the basis for the change in Diagnostic Code and to explain whether a continuation of a separate rating for neuritis under Diagnostic Code 8621 was warranted. On remand, such clarification has still not been obtained. Another remand is required. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Clarify the September 2017 rating decision which changed the rating code for the right lower extremity radiculopathy from Code 8621 to Code 8520 and specifically indicate whether a continuation of a separate 20 percent rating under Code 8621 is warranted; and if not, why. The Board notes that separate ratings for involvement of both the sciatic nerve and neuritis of the external popliteal nerve may be assigned under separate Codes 8520 and 8621, respectively. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.