Citation Nr: 21026987 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-42 870 DATE: May 5, 2021 ORDER A 30 percent rating, and no higher, for C5-C6 disc bulge is granted. FINDING OF FACT The Board resolves all doubt in favor of the Veteran by finding that symptoms associated with his cervical spine disability and associated subjective complaints involving the right upper extremity prior to September 28, 2011, more nearly approximate the criteria for a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine based on functional impairment. CONCLUSION OF LAW The criteria for a 30 percent rating, and no higher, for C5-C6 disc bulge have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1972 to October 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded by the Board in July 2011, October 2014, June 2016, February 2017, August 2018, September 2019, and December 2020. The December 2020 Board decision also granted service connection for cervical radiculopathy of the right upper extremity impairing the upper, middle, and lower radicular groups. The December 2020 rating decision that implemented the Board decision established a 20 percent rating for all radicular groups of the right upper extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8513, effective September 28, 2011. 1. Entitlement to a rating higher than 20 percent for C5-C6 disc bulge Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection for C5-C6 disc bulge was established pursuant to 38 U.S.C. § 1151 in a September 2006 rating decision, which assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective November 15, 2005. The Veteran filed a claim for increased rating that was received on June 24, 2008; the November 2008 rating decision that is the subject of this appeal continued the 20 percent rating assigned. The Board is tasked with determining whether a rating higher than 20 percent is warranted as of June 24, 2007. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Since the January 2019 VA examiner determined that the symptoms associated with the separately diagnosed cervical degenerative disc disease and spondylosis-arthritis of the cervical spine could not be separated from the service-connected C5-C6 disc bulge, the Board will consider all cervical spine symptomatology in determining whether an increased rating is warranted for the service-connected C5-C6 disc bulge. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of service- and nonservice-connected conditions, the doctrine of reasonable doubt dictates that the Veteran's disability be attributed to the service-connected disability). Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). As noted in the introduction, service connection for all radicular groups of the right upper extremity was granted under 38 C.F.R. § 4.124a, Diagnostic Code 8513, effective September 28, 2011, in a December 2020 rating decision. Ratings higher than 20 percent pertinent to the cervical spine are provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); and unfavorable ankylosis of the entire cervical spine (40 percent). Id. For VA compensation purposes, 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. Id. at Note (5). Note (2) of the General Rating Formula provides that 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. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), which provides a 40 percent rating with 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 with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The Board notes that since the Veteran is in receipt of a separate rating for all radicular groups of the right upper extremity effective September 28, 2011, symptomatology associated with that disability cannot be considered in assigning a rating for the cervical spine disability under the General Rating Formula except for prior to that date. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Upon consideration of the evidence and resolving all doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted for C5-C6 disc bulge throughout the entire appeal period based on findings that more nearly approximate the criteria for a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine based on functional impairment. During the June 13, 2007, VA examination, which was conducted 11 days before the start of the appeal period, the Veteran exhibited extension and left side bending to 10 degrees and right side bending to 15 degrees, all with pain. These findings represent a loss of 35 degrees of normal extension and left side bending, and a loss of 30 degrees of normal right side bending. During the July 2008 VA examination, the Veteran exhibited extension to 20 degrees, bilateral side bending and right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees, which represents a loss of 25 degrees of normal extension, 15 degrees of normal side bending, 50 degrees of normal right lateral rotation, and 60 degrees of normal left lateral rotation. The July 2008 VA examiner also reported that the Veteran's cervical spine range of motion and strength were diminished due to pain when repetitive motion testing was attempted. At the time of the September 2011 VA examination, extension was to 20 degrees with pain at 20 degrees, right lateral flexion was to 15 degrees with pain at 15 degrees, left lateral flexion was to 30 degrees, right lateral rotation was to 30 degrees with pain at 30 degrees, and left lateral rotation was to 45 degrees with pain at 45 degrees. This represents a loss of 25 degrees of normal extension, 15 degrees of normal lateral flexion, 50 degrees of normal right lateral rotation, and 35 degrees of normal left lateral rotation. During the December 2014 VA examination, the Veteran exhibited bilateral lateral rotation to 40, which represents a loss of 40 degrees from normal; and during the July 2016 VA examination, left lateral flexion was limited to 15 degrees, right lateral rotation was limited to 35 degrees, and left lateral rotation was limited to 25 degrees, which represents a loss of 30 degrees of normal left lateral flexion, 45 degrees of normal right lateral rotation, and 55 degrees of normal left lateral rotation, with the examiner noting that pain caused functional loss. Functional loss continued to be exhibited during VA examinations conducted in January 2019 and December 2019. In January 2019, flexion and right lateral flexion were limited to 20 degrees, extension and left lateral flexion were limited to 15 degrees, right lateral rotation was limited to 45 degrees, and left lateral rotation was limited to 30 degrees, which represents a loss of 25 degrees of normal flexion and right lateral flexion, 30 degrees of normal extension and left lateral flexion, 35 degrees of normal right lateral rotation, and 50 degrees of normal left lateral rotation. The January 2019 VA examiner also reported that abnormal motion contributed to functional loss because the Veteran had difficulty rotating when driving, that pain was noted on all motions and caused functional loss, and that pain, weakness, fatigability and/or incoordination significantly limited functional ability with repeated use over a period of time and during flareup based on subjective symptomatology as reported by the Veteran. In December 2019, extension was limited to 15 degrees, right lateral flexion was limited to 20 degrees, left lateral flexion was limited to 25 degrees, and right lateral rotation was limited to 45 degrees. This represents a loss of 30 degrees of normal extension, 25 degrees of normal right lateral flexion, 20 degrees of normal left lateral flexion, and 35 degrees of normal right lateral rotation. The January 2019 VA examiner also reported that abnormal motion contributed to functional loss based on the Veteran's report of pain and decreased motion causing him to take frequent breaks from computer use and needing to carry items in his left hand. The January 2019 examiner noted additional loss of function or motion due to pain and weakness during repetitive use testing with a loss of five degrees of flexion, right lateral flexion, and left lateral rotation; and a loss of 10 degrees of right lateral rotation. The January 2019 VA examiner also determined that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use and during flareups, with a loss of 10 degrees of flexion and right lateral rotation and a loss of five degrees of right lateral flexion and left lateral rotation. In a February 2021 addendum to the January 2019 VA examination, the examiner noted that it is typical for repetitive use to result in functional loss and for a flare-up to be more severe, resulting in greater functional loss and greater loss of range of motion. The findings discussed in the preceding two paragraphs more nearly approximate the criteria for a 30 percent rating under the General Rating Formula due to functional impairment and the effects of pain on functional abilities throughout the appeal period. The Board has also considered the subjective complaints of pain radiating into the right upper extremity from the shoulder to the elbow made prior to September 28, 2011, in assigning the 30 percent rating. Although an April 2006 electromyograph and nerve conduction study of the right upper extremity showed no evidence of active motor radiculopathy in the myotomes studied (levels C5, C6, C7,C8 and T1), the Veteran continued to have subjective right upper extremity complaints that were accompanied by objective neurologic abnormalities that did not rise to a separate diagnosis. Of note, the Veteran exhibited decreased deep tendon reflexes in the C5 biceps tendons, C6 brachioradiales, and C7 triceps tendons in March 2007; decreased muscle grip and complaint of vague tingling to fingers during the June 2007 VA examination; and spotty hypoalgesia of the right upper extremity not following a dermatomal pattern and decreased right upper extremity motor strength during the July 2008 VA examination. Since the June 2007 VA examiner stated there was no evidence of cervical radiculopathy and the July 2008 VA examiner stated there was nerve root irritation to the right upper extremity but no evidence of any frank radiculopathy, only the subjective complaints can be considered. A rating higher than 30 percent is not warranted under the General Rating Formula in the absence of unfavorable ankylosis of the entire cervical spine or evidence of the functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *4) (Apr. 16, 2021). A rating higher than 30 percent is also not warranted under the IVDS Formula in the absence of IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Veteran has never asserted he has been prescribed bed rest and the VA examiners who conducted the June 2007, July 2008, and December 2014 VA examinations specifically noted the absence of incapacitating episodes as defined by VA regulation. In sum, after resolving all doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a 30 percent rating for C5-C6 disc bulge throughout the entire period on appeal. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.