Citation Nr: 21028684 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 597 DATE: May 11, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine is denied. FINDING OF FACT The Veteran's degenerative arthritis of the cervical spine was productive of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, and with no evidence of muscle spasm or ankylosis of the spine. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation higher than 20 percent for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321 (b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1992 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2018 Board decision, this matter was remanded for a new VA examination to assess the current severity of the Veteran's degenerative arthritis of his cervical spine. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are interpreted in light of the records as a whole, and each disability is considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations applies, the higher evaluation is to be assigned if a disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate where the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Rating in excess of 20 percent for cervical spine degenerative arthritis The Veteran contends that his cervical spine degenerative arthritis, formerly rated as the residuals of an odontoid process fracture of his second cervical vertebrae, is more severe than what is contemplated by his 20 percent disability evaluation. See July 2016 VA Form 9 (noting complaints of pain in the daytime which interferes with his ability to perform his job, as well as stiffness at night). The Veteran's neck disability is currently rated under degenerative arthritis of the cervical spine, DC 5242. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome (IVDS) under DC 5243 based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new 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 a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Schedular changes It should be noted that, during the course of this appeal, the schedular criteria for evaluating the degenerative arthritis of the spine, as well as IVDS have been amended. Specifically, the criteria pertaining to DCs 5242 and 5243 under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's hand disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id In this case, the Veteran does not have IVDS. See September 2020 VA Cervical Spine examination, pg. 9. The Veteran's complaints, objective physical examination, and diagnostic tests do not support a diagnosis of IVDS or upper extremity radiculopathy. See id. at pg. 2, 8 (noting no radicular pain and no symptoms, objective exam findings or diagnostic tests that indicate upper extremity radiculopathy). Therefore, the Board finds evaluation under IVDS is not warranted and not helpful to the Veteran. The Board will evaluate the claim under degenerative arthritis of the spine, which is the more appropriate code. Degenerative arthritis of cervical spine, DC 5242 Under DC 5242, and General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees; or where the combined ROM of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is 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 where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. The United States Court of Appeals for Veterans Claims (the Court) has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination[,or] endurance." Id. (quoting 38 C.F.R. § 4.40). Further, in increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner's failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. See Sharp, 29 Vet. App. at 34-35. Additionally, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, ROM measurements of the opposite undamaged joint. The cervical spine does not have an opposite joint. Analysis The Veteran's cervical spine is evaluated as 20 percent disabling under DC 5242. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent during the pendency of this claim. The Veteran underwent an examination in November 2014. The Veteran was noted to have forward flexion of up to 35 degrees with no objective evidence of painful motion, extension of up to 35 degrees with no objective evidence of painful motion, right lateral flexion up to 30 degrees with no objective evidence of painful motion, left lateral flexion up to 30 degrees with no objective evidence of painful motion, right lateral rotation up to 60 degrees with no objective evidence of painful motion, and left lateral rotation up to 50 degrees with no objective evidence of painful motion. See November 2014 Cervical Spine VA Examination, pgs. 2-3. The examiner noted ROM after three repetitions and documented that the results were unchanged. The Veteran did not exhibit localized tenderness, spasm, abnormal spinal contour or ankylosis. See id. at pg. 4. The examiner noted that pain caused a functional loss in that the Veteran's ROM was less than normal. See id. However, as the Board noted in an October 2018 Board decision, the examiner did not perform testing in weight-bearing versus non-weight bearing as directed by Correia, 28 Vet. App. at 158 (holding that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing). See October 2018 Board Remand. The Board also noted that the examiner did not provide an adequate explanation for not evaluating the functional effects of flare-ups as directed by Sharp, 29 Vet. App. at 34-35. See id. To the extent the 2014 examiner did not assess ROM testing in non-weightbearing and weight bearing, and did not adequately address functional impairments during flares, the Board finds the opinion is entitled to less probative weight. In September 2020, the Veteran was afforded a new VA examination for his cervical spine to consider the pertinent Court directives. The examiner noted that the Veteran experienced an additional functional loss due to pain during flare-ups which caused a further reduction in the Veteran's ROM. Initial ROM testing revealed forward flexion of up to 35 degrees, extension of up to 35 degrees, right lateral flexion of up to 30 degrees, left lateral flexion of up to 30 degrees, right lateral rotation of up to 60 degrees, left lateral rotation of up to 55 degrees for a total of 245 degrees. See September 2020 VA examination, pg. 3. After repetitive use testing, the Veteran's ROM revealed flexion up to 30 degrees, extension up to 30 degrees, and no further loss of ROM. See id. at pg. 5. The examiner noted that pain reduced the Veteran's functional ability during flareups in that discomfort affected his ability to work. See id. at pg. 12. The Veteran was noted to work as a barber. See July 2016 VA Form 9. The examiner opined that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that mild pain was evidenced on palpation of the back of the neck. See September 2020 VA examination, pg. 4. The Veteran reported that his pain has stayed the same since the fracture of his vertebra. See id. at pg. 2. He described it as daily with the motion of his neck treated with anti-inflammatories, cold warm compresses and has occasionally been prescribed narcotic medications for pain. Id. at pg. 3. The Veteran did not have radiculopathy or radicular pain, nor did the examiner find evidence of ankylosis, abnormal curvature of his cervical spine. See id. at pgs. 8-9, 11. The Veteran is competent to report his symptoms, and the Board has considered his complaints in reaching this decision. However, the objective findings are more probative with regard to the actual measurements in the ROM testing. Even considering the Veteran's subjective complaints of pain, the evidence of record does not show any additional limitation of motion or functional impairment that supports an evaluation higher than 20 percent. Throughout the period on appeal his flexion has been, at worst, to 30 degrees. To meet the criteria for a 30 percent rating, the range of flexion would have to be limited to 15 degrees or less or favorable ankylosis of the entire cervical spine under diagnostic code 5242. At the 2014 examination, flexion was, at worst, to 35 degrees; and in 2020 his flexion was 35 degrees, with an additional limitation in ROM following three repetitions of flexion to 30 degrees. Regarding Correia criteria, the 2020 examiner noted there was objective evidence of pain when the spine is used in non-weight bearing, and passive ROM was the same as active. The objective evidence of pain remained the same in weight bearing and non-weight bearing, active as well as passive ROM. The Court has established that flare-ups must be considered. Flare-ups must be quantified and result in limitation of motion or function beyond that contemplated by the already provided evaluation. See Mitchell, 25 Vet. App. at 38. In this case, the examiner noted a 5-degree reduction in flexion and extension, to 30 degrees. Accordingly, even considering Court directive factors there is no basis on which to warrant higher evaluation based on flare-ups. Moreover, the most probative evidence does not show that the Veteran had forward flexion of the cervical spine limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. At no time during the pendency of the appeal, has there been findings of ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the limitation of motion noted by the VA examiners (including negative findings of ankylosis), and VA medical providers, the Board finds that at no time during the course of the appeal has the Veteran had ankylosis of the spine. The assigned 20 percent rating adequately contemplates the Veteran's level of impairment including consideration of functional impairment during flare-ups or following repetitive motion. As such, a higher evaluation is not warranted due to functional loss. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The Veteran's reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation, and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Accordingly, entitlement to an evaluation higher than 20 percent for the cervical spine disability is not warranted. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.