Citation Nr: 21026429 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 10-12 428 DATE: May 3, 2021 ORDER A rating in excess of 20 percent for cervical muscle spasm, C6-7 small right paracentral disc protrusion with mild bilateral neuroforaminal narrowing (cervical spine disability), from October 31, 2011 to August 4, 2014 is denied. A 30 percent rating, and no higher, is granted for a cervical spine disability from August 5, 2014. FINDINGS OF FACT 1. From October 31, 2011 to August 4, 2014, the Veteran's cervical spine disability is not shown to have been manifested by forward flexion of the cervical spine to 15 degrees or less, or by favorable or unfavorable ankylosis of the entire cervical spine, or the functional equivalent thereof; incapacitating episodes of intervertebral disc syndrome (IVDS) were not shown. 2. From August 5, 2014, it is at least as likely as not that the Veteran's cervical spine disability has been manifested by limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; it has not been manifested by unfavorable ankylosis of the entire cervical spine, or the functional equivalent thereof, and incapacitating episodes of IVDS have not been shown. CONCLUSIONS OF LAW 1. From October 31, 2011 to August 4, 2014, the criteria for a disability 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, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243. 2. Resolving reasonable doubt in the Veteran's favor, from August 5, 2014, the criteria for a disability rating of 30 percent, and no higher, for his cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 2008 to January 2009, and from April 2013 to March 2014, to include service in Afghanistan. He also had many years of service in the Army National Guard, to include a period of active duty for training from September 1987 to December 1987. His decorations include the Afghanistan Campaign Medal with Campaign Star. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO granted service connection and an initial 10 percent rating for the Veteran's cervical spine disability, effective January 12, 2009. In May 2013, the RO increased the rating to 20 percent, effective October 31, 2011. In September 2014, the Board found that a 20 percent rating for the Veteran's cervical spine disability was warranted for the period on appeal prior to October 31, 2011. As to the period from October 31, 2011, the Board remanded the claim for additional development. Inasmuch as the Veteran did not appeal the September 2014 Board decision with respect to the period prior to October 31, 2011, the period currently on appeal is from October 31, 2011 forward, as reflected in the characterization of the issues as set forth above. In its September 2014 remand directives, the Board, in pertinent part, directed the agency of original jurisdiction (AOJ) to provide the Veteran with notice of VA's duties to notify and assist, to request complete updated copies of the Veteran's service treatment and personnel records, and to afford the Veteran a new VA examination in connection with his claim. The AOJ provided the Veteran with notice of VA's duties to notify and assist in October 2014. It also obtained updated service treatment and personnel records. The Board finds that the AOJ at least substantially complied with the Board's September 2014 remand directives regarding records development. See Stegall v. West, 11 Vet. App. 268 (1998). In September 2018, the Board, in pertinent part, denied a rating in excess of 20 percent for the Veteran's cervical spine disability from October 31, 2011. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied a rating in excess of 20 percent for the cervical spine disability from October 31, 2011 and remanding that matter for development consistent with the JMPR. Another issue adjudicated in the September 2018 decision was dismissed as abandoned. In July 2019, the Board remanded the claim for development consistent with the JMPR. It directed the AOJ to obtain any outstanding records of treatment pertinent to the Veteran's cervical spine disability after obtaining any necessary releases, and to schedule the Veteran for a new VA examination in connection with his claim. In February 2020, the AOJ sent the Veteran a letter requesting that he identify and provide an appropriate release for records of private treatment pertaining to his cervical spine disability. In March 2020, the Veteran provided a release and indicated that he received treatment at Centro Neumologico del Oeste and from VA providers. The AOJ obtained records from Centro Neumologico del Oeste in April 2020 and obtained updated VA treatment records in September 2020. It afforded the Veteran a new VA examination in December 2019. While acknowledging that the December 2019 VA examiner could not have reviewed the records from Centro Neumologico del Oeste as they were obtained subsequent to his examination, the Board notes that the records show treatment for sleep apnea, and are not pertinent to the Veteran's claim for an increased rating for a cervical spine disability. Given the efforts of the AOJ outlined above, the Board finds that there has been at least substantial compliance with its remand directives. See Stegall, supra. 1. A rating in excess of 20 percent for the cervical spine disability from October 31, 2011 to August 4, 2014 is denied. 2. A 30 percent rating, and no higher, is granted for the cervical spine disability from August 5, 2014. The Veteran's cervical spine disability has been rated as 20 percent disabling from October 31, 2011. He contends that a higher rating is warranted. His representative advanced argument in an August 5, 2014 Informal Hearing Presentation (IHP) to the effect that his cervical spine disability had worsened in severity and continued to deteriorate. He also contended in an October 2014 document that his neck pain radiated to both trapezius muscles. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. 38 C.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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Amendments to the criteria for rating disabilities of the spine were published in November 2020. See Schedule of Ratings: Musculoskeletal System, 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). The amendments were made effective as of February 7, 2021, and apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. Throughout the appellate period, the Veteran's cervical spine disability has been evaluated pursuant to Diagnostic Code (DC) 5243 for IVDS. The current version of DC 5243 for IVDS instructs adjudicators to employ that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to employ DC 5242 for all other disc diagnoses. The former version of the diagnostic code provided no such instruction. Both the former and current version of DC 5243 provide that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS 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. Any compensable rating under the Formula for Rating IVDS Based on Incapacitating Episodes requires that the disability cause incapacitating episodes. Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The recent amendments to the criteria for rating disabilities of the spine did not change the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, if the combined range of motion of the cervical spine is not greater than 170 degrees; or, if there is 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 to 15 degrees or less; or, if there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Based on review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the period from October 31, 2011 to August 4, 2014. It further finds that a 30 percent rating, but no higher, from August 5, 2014 is warranted. The Veteran was afforded a VA examination in connection with his claim in October 2011. The examiner diagnosed cervical muscle spasm and C6-7 small right paracentral disc protrusion. The Veteran did not report flare-ups at that time. On range of motion testing, he had forward flexion to 35 degrees with objective evidence of painful motion beginning at 30 degrees; extension to 30 degrees with objective evidence of painful motion beginning at 25 degrees; right and left lateral flexion to 15 degrees with objective evidence of painful motion beginning at 10 degrees, and right and left lateral rotation to 50 degrees with objective evidence of painful motion beginning at 40 degrees. On repetitive use testing, the Veteran's forward flexion and extension were to 25 degrees, his right and left lateral flexion were to 10 degrees, his right lateral rotation was to 35 degrees, and his left lateral rotation was to 30 degrees. The examiner found that the Veteran had additional limitation of range of motion of the cervical spine following repetitive use testing and functional loss and/or functional impairment of the cervical spine, stating that contributing factors of disability included less movement than normal and pain on movement. He also noted localized tenderness or pain to palpation for joints or the soft tissue of the cervical spine, as well as guarding and/or muscle spasm. He further indicated, however, that while it was present, guarding or muscle spasm did not result in abnormal gait or spinal contour. The Veteran's strength was full, he had no atrophy, his reflexes and sensation were normal, and he did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner also found that the Veteran had IVDS, but that he had not had any incapacitating episodes in the past 12 months. The Veteran did not use an assistive device, and the examiner noted that a February 2009 x-ray showed no abnormalities in the cervical spine. He also cited to a March 2009 MRI (magnetic resonance imaging) of the cervical spine which showed a small right paracentral disc protrusion with mild bilateral neuroforaminal narrowing, but stated that arthritis was not documented. He opined that the condition did not impact the Veteran's ability to work. In January 2012, a VA treatment record showed that examination of the Veteran's neck was normal. Range of motion was intact, muscle tone was adequate, and no deformities were noted. In August 2012, a VA treatment record showed similar findings, with the only objective finding being tenderness in the upper neck area. In December 2012, a VA treatment record showed abnormal range of motion, with slow flexion and marked restriction in rotation with pain in the right trapezius, though no measurements were recorded at that time. The Veteran's reflexes, strength, and gait were normal. At an examination later that same month, cervical flexion and extension were noted to be within normal limits, though cervical strength was reduced to 3/5, and there was also moderate tenderness and spasm. In February 2013, a VA treatment record again showed that flexion and extension were within functional limits, cervical strength was 4/5, and other findings were normal. In June 2014, a VA treatment record showed that range of motion was intact, muscle tone was adequate, and no deformities were noted. The Veteran was afforded a second VA examination in connection with his claim in November 2014. He reported flare-ups at that time, but the examiner stated that it would be speculative to express additional limitation due to flare-ups in terms of range of motion. In its July 2019 remand, the Board found that the examiner's failure to attempt to estimate additional limitation in terms of range of motion during flare-ups rendered the November 2014 VA examination inadequate. While the Board will therefore not rely on the examination results in rating the Veteran's cervical spine disability, it finds that the Veteran's report of flare-ups at that time, which is also the first time that he reported them, to be fully credible. In May 2015, a VA treatment record showed that range of motion was intact, muscle tone was adequate, and no deformities were noted. In July 2015, a VA treatment record indicated abnormal range of motion, but again no measurements were recorded. The Veteran's upper extremities were also normal, and the provider noted that he had no radicular symptoms. Later that same month, the Veteran denied right upper extremity numbness or paresthesias, a spasm was noted on the left side of his neck, and he ambulated without an assistive device and was noted to be independent in activities of daily living. The provider also noted that a 2015 x-ray of the cervical spine was normal. In September 2015, VA treatment records showed that the Veteran had a decrease in range of motion, though his muscle tone was adequate and no deformities were noted. He also denied upper limb radiation, was noted to have a muscular build with no deformities, and had no radicular symptoms. VA treatment records in March 2018 and October 2019 note that the Veteran had muscle spasms of the head or neck, but no additional details of examination were provided. The Veteran was afforded a second VA examination in December 2019. The examiner noted the same diagnosis as the October 2011 examiner, and also diagnosed cervical spasm. The Veteran reported flare-ups that occurred about twice a week that lasted approximately 1 or 2 days. Range of motion testing showed that his forward flexion was to 30 degrees, extension was to 20 degrees, right and left lateral flexion were to 20 degrees, and right and left lateral rotation were to 30 degrees. The examiner noted that there was pain on examination but that it did not result in functional loss, that there was no evidence of pain with weight-bearing, but that there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no additional functional or range of motion loss after three repetitions, but the examiner found that pain caused additional functional loss, which he described in terms of range of motion as forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. The examiner further noted that the examination was not being conducted during a flare-up, but that pain significantly limited functional ability during flare-ups. The examiner described the functional limitation in terms of range of motion as forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. There was no guarding or spasm of the cervical spine, the Veteran's strength was full, he had no atrophy or ankylosis, his reflexes and sensation were normal, and there was no radicular pain or other signs or symptoms due to radiculopathy. The examiner stated that the Veteran did not have IVDS, noted that he did not use any assistive devices, and imaging studies were not performed. Finally, the examiner found that there was evidence of pain on passive range of motion testing, and when the joint was used in non-weight bearing. Following review of the record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's cervical spine disability from October 31, 2011 to August 4, 2014. During that period, the evidence demonstrates that his forward flexion was limited, at most, to 35 degrees with objective evidence of pain beginning at 30 degrees. Even on repetitive use testing, forward flexion was limited only to 25 degrees, and he did not report flare-ups or worsening during that period. He was never shown to have forward flexion limited to 15 degrees or less, and he has never been shown to have had any ankylosis of the spine. Simply put, there is no evidence in the claims file to support a rating in excess of 20 percent for the Veteran's cervical spine disability from October 31, 2011 to August 4, 2014. As to the period from August 5, 2014, however, the Board finds that a 30 percent rating, but no higher, is warranted. The Veteran alleged, through his representative, in an August 5, 2014 IHP that his condition had worsened. He reported flare-ups at the November 2014 VA examination. At the December 2019 VA examination, the examiner found that flare-ups occurred twice a week and lasted approximately 1-2 days. He described the additional limitation during flare-ups in terms of range of motion as forward flexion to limited to 15 degrees. He further described the additional limitation resulting from pain on repetitive use testing in terms of range of motion as forward flexion limited to 15 degrees. In light of the December 2019 VA examiner's findings regarding flare-ups and repeated use over time, the Board finds that the evidence more nearly approximates the 30 percent criteria under The General Rating Formula for the Spine. While objective evidence of limitation during flare-ups and with repeated use over time in terms of range of motion was not recorded until the December 2019 VA examination, the Board resolves reasonable doubt in the Veteran's favor and finds that given the allegation of worsening in the August 5, 2014 IHP and his credible report of flare-ups at the November 2014 VA examination, his cervical spine disability has been manifested by symptoms more nearly approximating forward flexion limited to 15 degrees from August 5, 2014. That said, the preponderance of the evidence is against a rating in excess of 30 percent from August 5, 2014. Simply put, the Veteran has never been shown to have ankylosis of the spine, or the functional equivalent thereof, which is a requirement for any higher rating. In arriving at these conclusions, consideration has also been given to the possibility of assigning an increased evaluation for the Veteran's cervical spine disability for both periods on appeal 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. The Board has also considered the Veteran's contention that his neck pain radiates, which is perhaps suggestive of neurological impairment. However, the preponderance of the evidence is against the assignment of separate ratings for disabilities manifested by neurological impairment. The July 2015 VA treatment record indicated that the Veteran had no radicular symptoms, and he specifically denied right upper extremity numbness or paresthesias later that same month. In September 2015, the Veteran again denied upper limb radiation and was found to have no radicular symptoms. He also had no radicular pain or signs or symptoms of radiculopathy at the December 2019 VA examination. Separate ratings for neurologic abnormalities are therefore not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Inasmuch as the preponderance of the evidence is against the assignment of a rating in excess of 20 percent from October 31, 2011 to August 4, 2014, that doctrine is not for application, and a rating in excess of 20 percent for that period is denied. For the period on appeal from August 5, 2014, the Board finds that the Veteran's cervical spine disability has more nearly approximated the criteria for a 30 percent rating, but no higher. As the preponderance of the evidence is against a rating in excess of 30 percent from August 5, 2014, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. From August 5, 2014, the Veteran is entitled to a rating of 30 percent, but no more. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.