Citation Nr: 21025572 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-23 121A DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 30 percent for a cervical spine disability, as of March 17, 2015, is denied. REMAND Entitlement to a rating in excess of 20 percent for a cervical spine disability, prior to March 17, 2015, is remanded. FINDING OF FACT As of March 17, 2015, a cervical spine disability was manifested by pain and forward flexion of 15 degrees or less, without unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for a cervical spine disability as of March 17, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to August 1987. In March 2019, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated 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, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating 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 if forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; or the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable 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, Diagnostic Codes 5235-5243. Normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Note 2. Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Entitlement to a rating in excess of 30 percent as of March 17, 2015 A May 2016 rating decision increased the rating for a cervical spine disability from 20 percent to 30 percent, effective March 17, 2015. The Veteran asserts that a service-connected cervical spine disability is worse than contemplated by the 30 percent rating assigned as of March 17, 2015. In a November 2015 email, the Veteran stated that VA had not considered “the fracture of C-7, herniated discs on both sides of [the] neck, bulged disc, and less than 15% motion” of the cervical spine. In a March 2021 statement, the Veteran’s representative state that the December 2019 VA examiner noted that the Veteran did not experience “flare ups, which [was] not completely understood as [the Veteran] was in pain during the [examination] and could not complete the observed repetitive use during the examination due to severe pain. That appear[ed] to constitute a flare up…” In March 2015, a private doctor diagnosed cervical stenosis and stated that a service-connected cervical spine disability included symptoms of neck pain, radiculopathy, and forward flexion limited to less than 15 degrees. The doctor noted that there was no ankylosis or intervertebral disc syndrome. The doctor noted that a cervical spine caused headache impairment and excessive absenteeism. In June and July 2016, two separate doctors stated that a service-connected cervical spine disability was the result of a 1981 fracture of C7. In September 2016, the Veteran underwent cervical spine surgery to repair C5-C6 and C6-C7. A December 2019 VA examination diagnosed residuals of sixth cervical vertebral process fracture with traumatic degenerative joint disease, degenerative disc disease, and spondylosis with bilateral hand paresthesia. The Veteran reported daily neck pain and difficulty with prolonged sitting, lying down, neck rotation while driving. The Veteran did not report flare-ups. Range of motion testing showed forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. Range of motion did not contribute to functional loss, and pain was noted on examination but did not result in functional loss. The Veteran was unable to perform repetitive use testing due to severe neck pain. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and estimated forward flexion to 35 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 10 degrees. There was objective evidence of pain when the neck was used in nonweight-bearing, pain on passive range of motion testing with passive motion measuring the same as active motion, and no pain with weight-bearing. Radiculopathy, ankylosis, and IVDS were not noted. A cervical spine disability affected the Veteran’s ability to work as there was difficulty with prolonged sitting and neck rotation. The examiner noted that the Veteran “would have to alternate sitting and standing.” On review of all the evidence of record, both lay and medical, the Board finds that a service-connected cervical spine disability has not more nearly approximated a rating in excess of 30 percent as of March 17, 2015. The next higher rating requires unfavorable ankylosis of the entire cervical spine which has not been shown. The evidence does not show functional impairment that more nearly approximates the criteria to support a higher rating, even considering the Veteran's subjective complaints. The Board notes that even though the Veteran reported the inability to perform repetitive use testing at the December 2019 VA examination, the Veteran reported that a cervical spine disability had “improved since surgery” and range of motion testing showed forward flexion was near normal at 40 degrees. The evidence does not show limitation of motion tantamount to ankylosis, even with consideration of other functionally limiting factors. Consideration has been given to assigning separate ratings for neurological abnormalities or chronic neurologic manifestations. However, the record shows that service connection has been established for bilateral upper extremity radiculopathy. No other neurological abnormalities have been demonstrated. Inasmuch as the Veteran asserts that a separate rating is warranted for residuals of a C7 fracture, the Board notes that Diagnostic Codes 5235 through 5243 contemplate vertebral fractures or dislocations; sacroiliac injuries and weakness; lumbosacral or cervical strains; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome. A fracture of the cervical spine was noted and has been considered in establishing service connection for a cervical spine disability and subsequent cervical spine disability ratings. The Board finds that there is no evidence which supports a finding that the effects of a fracture of C7 resulted in functional impairment which has not already been considered in the assigned rating. Because C7 fracture residuals overlap with other symptoms of a service-connected cervical spine disability such as degenerative arthritis, assigning a separate rating would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Board acknowledges the March 2021 contention that a cervical spine disability included flare ups because the Veteran was in pain and could not perform repetitive use testing during the December 2019 VA examination. However, the Board notes that a flare up is defined as “a sudden increase in symptoms of a latent or subsiding disease.” Crowe v. Brown, 7 Vet. App. 238 (1994). There is no evidence of flare ups in the medical records; the Veteran did not report flare ups at the December 2019 VA examination. The Veteran reported daily neck pain at the December 2019 VA examination. Moreover, there is no evidence that cervical spine symptoms, to include the March 2021 claim of flare ups, more nearly approximate the criteria for the next higher rating. The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms such as pain and limited motion of the neck. Layno v. Brown, 6 Vet. App. 465 (1994). However, the clinical findings reported by medical professionals is probative as the Veteran is not shown to have the requisite education, experience, and training to determine the severity level of service-connected cervical spine disability as it applies to the rating schedule. Smith v. Derwinski, 1 Vet. App. 235 (1991). The Board finds that symptoms of a cervical spine disability are fully contemplated in the 30 percent rating assigned as of March 17, 2015. The preponderance of the evidence shows that the disability picture, even considering pain and functional limitation, does not warrant a separate or higher rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for a cervical spine disability, as of March 17, 2015, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent prior to March 17, 2015, is remanded The Veteran asserts that prior to March 17, 2015, a service-connected cervical spine disability was more severe than contemplated by the 20 percent rating assigned. August 2010 and October 2013 VA examinations were conducted prior to the requirement that musculoskeletal disabilities include joint testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Therefore, the 2010 and 2013 VA examinations did not include the required testing. When there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted. Chotta v. Peake, 22 Vet. App. 80 (2008). Therefore, remand for a medical opinion is necessary. In March 2015, a medical professional stated that the Veteran was unable to work due to chronic neck and back pain. In March 2021, the Veteran’s representative stated that “[o]ccupationally, it would be difficult for [the Veteran] to even do sedentary work due to the location of his service-connected disability in his neck.” The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to assess the severity of a cervical spine disability, to include a retrospective opinion with regard to the severity of a service-connected cervical spine disability, prior to March 17, 2015. The examiner must review the claims file and should note that review in the report. The examiner is asked to determine the severity of a cervical spine disability, and the impact of the disability on the Veteran's daily activities and ability to work. In assessing the cervical spine disability, the examiner should: (a.) Opine as to the range of motion of the cervical spine during active motion, passive motion, weight-bearing, and nonweight-bearing prior to March 17, 2015. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that forward flexion of the cervical spine was limited to 15 degrees or less; or there was limitation causing ankylosis of the entire cervical spine, to include on flare-up or with consideration of other limiting factors such as weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up. (b.) Discuss the severity, frequency, and duration of any flare-ups prior to March 17, 2015, and the precipitating and alleviating factors, and whether those flare-ups limited cervical flexion to 15 degrees or less or caused a limitation tantamount to ankylosis. The examiner should review the August 2010 and October 2013 examinations and interview the Veteran in providing the opinions. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is or has been unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.