Citation Nr: 21029134 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-43 762 DATE: May 12, 2021 ORDER Entitlement to a rating greater than 10 percent for a neck disability is denied. REMANDED Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, Veteran's cervical spine disability was not shown to have been manifested by forward flexion of the cervical spine limited to 30 degrees or less; combined range of motion less than 170 degrees; or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome.. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.71 Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October1976 to October1979, from November1990 to September 1991and from April 2003 to July 2004. The claim was most recently before the Board in November 2020 when it was remanded for further development. The Board is satisfied that there has been substantial compliance with the November 2020 remand directives pertaining to the increased rating claim for a neck disability and the Board may proceed with review of that issue. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating greater than 10 percent for a neck disability The Veteran contends that his service-connected neck disability warrants a higher rating. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board finds that a higher rating is not warranted for the Veteran's neck disability at any time during the period on appeal. Schafrath, 1 Vet. App. at 589; Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Under the old rating criteria, Intervertebral disc syndrome (IVDS) will be evaluated 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC's 5235-5242. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The Veteran does not have IVDS and the changes do not impact the general rating formula; evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. Under the General Rating Formula for 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 for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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. A rating of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the cervical spine. A 50 percent rating is warranted for unfavorable 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, DC 5237. 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. General Rating Formula for Diseases and Injuries of the Spine, Note 2.38 C.F.R. § 4.71a, Codes 5235-5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, DC's 5235-5242, Note (4). "Combined range of motion" is the sum of the ranges of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. Normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. On VA examination in September 2014, the examiner confirmed the diagnosis of spondylolisthesis of the cervical spine. For the initial range of motion (ROM) the examiner recorded 45 degrees forward flexion and a combined cervical spine ROM of 340 degrees. The examiner further recorded that there was no objective evidence of painful motion and that the Veteran was able to perform repetitive testing without experiencing any additional loss of ROM. The examiner documented that the Veteran did not report experiencing flare-ups. The Veteran testified at a July 2019 Board hearing that he injured his neck following a nightmare that made him jump up out of bed and start running, in which he unintentionally ran into a wall. The Veteran also testified that he was required to wear a neck brace following that injury and has not been able to return to work. The Veteran also testified that he experiences numbness and tingling from his fingers up his left arm. Pursuant to the Board's November 2020 remand, the Veteran was given a VA examination in March 2021. The examiner confirmed the diagnosis of cervical spondylosis with myelopathy. The Veteran reported having neck pain since his injuries. However, the examiner noted that the Veteran did not report having flare-ups. For the initial range of motion (ROM) the examiner recorded 40 degrees forward flexion and a combined cervical spine ROM of 300 degrees. The examiner found evidence of painful motion in forward flexion, extension, right and left lateral flexion and rotation. However, there was no additional loss of ROM after repetitive use or from active or passive motion. The Veteran did have evidence of pain during weight-bearing and active motion. On sensory examination, the Veteran had mild constant pain, moderate intermittent pain, mild paresthesia and numbness in his left upper extremity. The examiner noted the Veteran had left upper extremity radiculopathy of the left upper extremity affecting the C5/C6 nerve roots (upper radicular). The Veteran did not have any additional neurological abnormalities. He also did have ankylosis, or intervertebral disc syndrome (IVDS) requiring prescribed bed rest. The examiner opined that the Veteran's neck disability did not functionally impact his ability to perform occupational tasks. The Board finds that a higher 20 percent rating is not warranted for the Veteran's cervical spine disability, under either version of the rating criteria, at any point during the period on appeal. At no time during the period on appeal has the Veteran demonstrated forward flexion of the cervical spine less than 30 degrees or combined range of motion less than 170 degrees. During his September 2014 VA examination forward flexion was greater than 45 degrees and combined range of motion was 340 degrees. During the March 2021 VA examination, forward flexion was limited to 40 degrees and combined range of motion was 300 degrees. While the Veteran was noted to have pain in his neck during both the September 2014 and March 2021 VA examinations, both examiners indicated the pain did not result in functional loss. Additionally, the evidence reflects the Veteran did not have guarding or muscle spasms during this period. As there is no evidence of IVDS during the appeal period, consideration of a rating based IVDS is not warranted. The Veteran is separately compensated for left upper extremity radiculopathy (rated as peripheral neuropathy) and the rating for that issue is not before the Board in this appeal; there is no additional neurological abnormalities pertaining to his neck disabilities. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the preponderance of the evidence is against a higher rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a. REASONS FOR REMAND 1. Entitlement to a rating greater than 70 percent for PTSD is remanded. The claim must be remanded for additional development. Following the March 2021 VA examination, the Veteran submitted a statement with supporting evidence of witnessing another veteran commit suicide in the parking lot of a VA facility in September 2014. The Veteran reported that this incident caused a worsening of his symptoms. Although, the March 2021 examiner questioned the adequacy of a March 2015 private psychological examination, the March 2021 examiner does not appear to consider or discuss the suicide incident the Veteran reports he witnessed six months prior. On remand an supplemental medical opinion should be obtained to consider and discuss the suicide witnessed by the Veteran in September 2014; six months prior to the Veteran's March 2015 private examination. 2. Entitlement to TDIU is remanded. The TDIU claim is inextricably intertwined with the PTSD increased rating claim and adjudication of that issue will be deferred until the increased rating issue is decided. The matters are REMANDED for the following action: 1. Obtain a supplemental medical opinion from an appropriate VA examiner to assess the severity of the Veteran's service-connected PTSD. Copies of all pertinent medical records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided with an examination, then one should be scheduled. All necessary diagnostic testing should be performed using the appropriate DBQ if available. The examiner is asked to review and discuss the worsening effects, if any, the Veteran may have experienced after witnessing a Veteran suicide while leaving his VA appointment September 2014. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement TDIU. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.