Citation Nr: 21025524 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-18 833A DATE: April 28, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for a cervical spine disability, to include degenerative arthritis of the cervical spine, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s degenerative arthritis of the cervical spine s has been manifested by flexion to, at worst, 25 degrees, and extension to, at worst, 35 degrees. 2. Throughout the period on appeal, the Veteran’s degenerative arthritis of the cervical spine has not been manifested by intervertebral disc syndrome requiring prescribed bed rest by a physician based on incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a cervical spine disability 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. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to April 1970. During his period of service, the Veteran earned the National Defense Service Medal, Good Conduct Medal, and Sharpshooter Badge. This case was previously before the Board in February 2019, at which time the Board, in part, remanded the issues of entitlement to an evaluation in excess of 20 percent for a cervical spine disability and entitlement to a total disability rating based on individual unemployability (TDIU) for further development. Subsequently, by a November 2019 rating decision, entitlement to a TDIU was granted; thus, this issue is no longer before the Board for appellate consideration. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to a higher rating for a cervical spine disability Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when 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 relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran’s cervical spine disability is currently evaluated under DC 5242, applicable to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. See 38C.F.R. §4.71a. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Diagnostic Code 5242 instructs to rate under the General Rating Formula for Diseases and Injuries of the Spine. The criteria under the General Rating Formula for Diseases and Injuries of the Spine are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. 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). A 20 percent evaluation 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 30 percent evaluation is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. 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. § 4.71, Plate V. Moreover, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (5). Intervertebral Disc Syndrome (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 high evaluation when all disabilities are combined. Under the Formula for Rating IVDS, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. The Veteran appeared for a VA neck conditions examination in September 2013. The VA examiner diagnosed degenerative joint disease of the cervical spine. The Veteran reported flare-ups described as neck pain and numbness in the fingers. On examination, forward flexion ended at 30 degrees, with objective evidence of painful motion beginning at 30 degrees. Extension ended at 35 degrees, with objective evidence of painful motion beginning at 35 degrees. Right lateral flexion ended at 30 degrees, with objective evidence of painful motion beginning at 30 degrees. Left lateral flexion ended at 40 degrees, with objective evidence of painful motion beginning at 40 degrees. Right lateral rotation ended at 25 degrees, with objective evidence of painful motion beginning at 25 degrees. Left lateral rotation ended at 25 degrees, with objective evidence of painful motion beginning at 25 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, which did result in additional limitation in range of motion. Post-test forward flexion ended at 30 degrees. Post-test extension ended at 35 degrees. Post-test right lateral flexion ended at 30 degrees. Post-test left lateral flexion ended at 25 degrees. Post-test right lateral rotation ended at 40 degrees. Post-test left lateral rotation ended at 25 degrees. Contributing factors to the Veteran’s functional loss, functional impairment and/or additional limitation of range of motion after repetitive use included weakened movement and pain on movement. The Veteran also had localized tenderness of the cervical spine. Though the VA examiner determined the Veteran had intervertebral disc syndrome (IVDS) of the cervical spine, the Veteran had not had any incapacitating episodes over the past 12 months due to IVDS. Pursuant to the February 2019 Board remand, the Veteran appeared for a VA neck conditions examination in October 2019. The VA examiner diagnosed degenerative arthritis of the cervical spine. The Veteran described daily posterior neck pain, which also daily moderate flare-ups that lasted several minutes to one hour. Flare-ups were generally precipitated by “moving wrong” and were alleviated by rest and nonsteroidal anti-inflammatory drugs (NSAIDs). He reported functional loss or impairment of the cervical spine described as stiffness. On examination, forward flexion was from 0 to 30 degrees. Extension was from 0 to 40 degrees. Right lateral flexion was from 0 to 30 degrees. Left lateral flexion was from 0 to 30 degrees. Right lateral rotation was from 0 to 50 degrees. Left lateral rotation was from 0 to 50 degrees. Range of motion itself contributed to a functional loss, as decreased range of motion led to generalized stiffness of the neck and less effective physical activities. Pain that caused functional loss was exhibited on forward flexion, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation. There was evidence of pain on weight bearing and non-weight bearing. There was objective evidence of moderate localized tenderness or pain on palpation of the bilateral paracervical muscles and lower cervical spine in the midline. Guarding not resulting in abnormal gait or spinal contour was also observed. The Veteran was able to perform repetitive-use testing with three repetitions. There was no evidence of additional loss of function or range of motion after three repetitions. Although he was not examined immediately after repetitive use over time or during a flare-up, the VA examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during a flare-up. The examiner noted that pain and weakness significantly limited functional ability with repeated use over a period of time and with flare-ups. Described in terms of range of motion, after repeated use over time and during a flare-up, forward flexion was from 0 to 25 degrees. Extension was from 0 to 35 degrees. Right lateral flexion was from 0 to 25 degrees. Left lateral flexion was from 0 to 25 degrees. Right lateral rotation was from 0 to 40 degrees. Left lateral rotation was from 0 to 40 degrees. The Board has carefully reviewed the record and finds that the preponderance of the evidence is against an evaluation greater than 20 percent for degenerative arthritis of the cervical spine. This evaluation is consistent with the medical evidence of record, which fails to show that the Veteran’s forward flexion was limited to 15 degrees or less or that he suffered from favorable ankylosis of the entire cervical spine to warrant an increased rating at any time during the period on appeal. The Veteran’s cervical spine limitation of motion has been to, at worse, 25 degrees on flexion and 35 degrees on extension. Thus, the findings do not meet the criteria for a rating in excess of 20 percent for a cervical spine disability, to include degenerative arthritis of the cervical spine. Although the Board finds the Veteran’s assertions as to the severity of his symptoms to be credible, these reports alone do not warrant the assignment of an increased disability rating. Without evidence of greater limitation of motion or favorable ankylosis of the cervical spine, the Board cannot grant an increased disability rating. The Board has considered the totality of the symptoms of the Veteran’s cervical spine disability and they have been factored into the Board’s decision to continue the Veteran's 20 percent disability rating. The Veteran’s examinations and medical history do not show any signs or symptoms of ankylosis. Moreover, the examinations that the Veteran attended included range of motion testing and his pain and lost range of motion were adequately evaluated. Even considering DeLuca, while the Veteran complains of flare-ups and pain in his cervical spine that limit various activities, including lifting, pushing, pulling, and overhead work, the Veteran’s symptoms have been considered in the rating above and indeed is part and parcel of the 20 percent rating that he is currently assigned. DeLuca, supra. Consideration has been given to an increased evaluation for the Veteran’s cervical spine disability under the formula for rating IVDS. However, the medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, the Veteran’s service-connected cervical spine disability does not warrant an increased disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the appellate period. Thus, the Board concludes that an evaluation in excess of 20 percent is denied, as his disability picture is not more closely approximated by a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine or a 40 percent rating under the Formula for Rating Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tracy O. Joseph, 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.