Citation Nr: 21029417 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-25 780 DATE: May 13, 2021 ORDER Entitlement to a 30 percent rating for degenerative disc disease at C5-6 with herniated disc, residuals of a neck injury is granted. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's degenerative disc disease at C5-6 with herniated disc manifested as forward flexion that was limited to 30 degrees, at worst, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups without ankylosis, intervertebral disc syndrome with incapacitating episodes, nerve impairment of the left upper extremity or bladder or bowel impairment. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for degenerative disc disease at C5-6 with herniated disc, residuals of a neck injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1978 to May 1978 and from December 1990 to March 1991 and on active duty in the United States Air Force from July 2009 to February 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2016 and May 2019 rating decisions issued by a Department of Veterans Affairs Regional Office (RO). In September 2019, the Veteran submitted correspondence indicating that he wished to withdraw her request for a hearing before the Board. There are no other hearing requests or requests to reschedule of record, so the Board deems her request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). This matter previously came before the Board in February 2020 whereupon it was remanded back to RO for additional development, to include obtaining all outstanding VA and private records, and to schedule the Veteran for a VA examination to determine the current nature and severity of her spine disability. Updated VA treatment records have been associated with the record and a March 2021 VA examination was conducted. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter has returned to the Board for further appellate action. 1. Entitlement to increased rating for degenerative disc disease at C5-6 with herniated disc, residuals of a neck injury The Veteran asserts that she is entitled to an increased rating for her spine disability, specifically because her symptoms are more severe than contemplated by the currently assigned ratings. The Veteran's condition is contemplated under Diagnostic Code 5242 and 5003 in the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is warranted when 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 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 assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Diagnostic Code 5242. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the specific rating criteria for Diagnostic Code 5242 is unchanged under the revised criteria. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claim on appeal; and the appropriate criteria is discussed below. For VA compensation purposes, normal forward flexion of the cervical spine is from zero to 45 degrees; normal extension is zero to 45 degrees; normal light and right lateral flexion are zero to 45 degrees; and normal left and right lateral rotation are zero to 80 degrees. The normal combined range of motion for the cervical spine is 340 degrees. In exceptional cases, an examiner may state that due to age, body habits, neurologic disease, or other factors not the result of disease of injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even if the individual's range of motion findings fall short of what is considered normal generally. Provided that the examiner supports his conclusion with an explanation, the examiner's assessment will be accepted. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Where 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. The period on appeal in this instant matter begins on May 9, 2013. As such, the Board will review all evidence from May 9, 2013 onward. Throughout the period on appeal, the Board finds that a 30 percent rating is warranted. Forward flexion of the cervical spine was to 30 degrees with flare-ups, at worst, in a November 2015 VA examination and a November 2020 VA examination. A March 2021 private Disability Benefits Questionnaire found the Veteran's forward flexion to be to 20 degrees. As such, a 30 percent rating is warranted based upon consideration of painful motion and other factors discussed in DeLuca and Sharp v. Shulkin, 29 Vet. App. 26 (2017). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. However, a rating in excess of 30 percent is not warranted as the Veteran's examinations have been consistently negative for ankylosis and the Veteran has retained range of motion in the spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, the Board finds that, at no time during the appeal period has the Veteran's service-connected degenerative disc disease at C5-6 with herniated disc, residuals of a neck injury resulted in ankylosis warranting a rating higher than 30 percent. The Board has considered whether a higher rating could be assigned for any period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this case, there is no evidence that the Veteran has had incapacitating episodes as defined by VA regulations. Rather, the Veteran has not alleged, nor does the evidence show, that the Veteran has a diagnosis of IVDS that resulted in medically prescribed bedrest. Specifically, the Veteran was shown to have IVDS at her May 2015 and November VA examinations but without incapacitating episodes. Accordingly, a higher or separate rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In addition to considering the orthopedic manifestations of a spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that she has left upper extremity nerve impairment, bladder impairment or bowel impairment as a result of her service-connected cervical spine disorder. The Board notes that the Veteran is already in receipt of separate ratings for nerve impairment of the right upper extremity, that the effective date associated with that rating has been appealed under the Appeals Modernization Act and that this claim will be the subject of a future Board decision. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected cervical spine disorder resulted in neurological impairment. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examination in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded an addendum examination to ensure compliance with Correia and Sharp. In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. A May 2015 VA examiner measured active and passive range of motion, found that there was no pain on weight-bearing or nonweight-bearing and provided range of motion measurements during flare-ups. Moreover, the Veteran is now in receipt of a 30 percent rating throughout the appeal period and a higher rating is only available for ankylosis, hence, the holdings of Correia and Sharp are not applicable for this appeal period. Therefore, the Board finds that all information required for rating purposes has been provided. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Board has also considered the Veteran's statements in support of her claim and that she has past employment experience as a nurse. In considering the Veteran's statements, the Board recognizes her credentials and training as a registered nurse and thus finds her competent to report on certain medical matters such as diagnosis and symptoms, see Black v. Brown, 10 Vet. App. 279, 284 (1997) (a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment), and the Board gives her statements significant probative weight. However, at the same time, the Veteran's statements do not directly indicate specific range of motion criteria that are contemplated under higher ratings. As such, the clinical evidence is more probative in that it provides specific range of motion results. Such results are specifically contemplated as criteria under the ratings, pursuant to Diagnostic Code 5242, and are the basis for the award of the 30 percent rating herein. The Board has also considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected degenerative disc disease at C5-6 with herniated disc; however, the Board finds that her symptomatology referable to such disability has been stable throughout the period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds a 30 percent rating is warranted for degenerative disc disease at C5-6 with herniated disc, residuals of a neck injury throughout the period on appeal. However, a preponderance of the evidence is against a higher rating. To that extent, higher ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran contends that she is unable to obtain and maintain employment as a result of her service-connected disabilities. The record shows that the Veteran has been trained as a nurse and was employed as such for several years. She has since retired. Her last reported employment was in April 2015. Upon a review of the record, the Board finds that the Veteran indicated in her April 2019 VA Form 21-8940 that she expected to receive disability retirement benefits from the Social Security Administration (SSA). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board finds that such records are relevant in adjudicating this matter and thus finds remand necessary to allow for such records to be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). (Continued on the next page) 2. Obtain the Veteran's complete SSA records, including all administrative decision(s) on her application for SSA disability benefits and all underlying medical records, which are in SSA's possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.