Citation Nr: 21029999 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-06 167 DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied. FINDING OF FACT During the appeal period, beginning June 22, 2011, the Veteran's cervical spine disability has not been shown to be manifested by unfavorable ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5241. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to October 1974 and from May 1979 to May 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In July 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In December 2018, the Board remanded this claim to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 30 percent for a cervical spine disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The Veteran's status post cervical laminectomy and fusion C2 has been rated under Diagnostic Code 5241. 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 10 percent rating is warranted when 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 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 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 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 for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees, extension to 45 degrees, left and right lateral flexion are to 45 degrees, and left and right lateral rotation to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (2). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran filed an increased rating claim on June 22, 2011. The Veteran's status post cervical laminectomy and fusion C2 has been rated 30 percent under Diagnostic Code 5241, effective June 22, 2011. The Veteran contends that a cervical spine disability is more severe than that represented by the assigned ratings. The Board finds that a December 2014 cervical spine examination is incomplete as the examiner did not provide an opinion as to functional loss of range of motion during flare-ups or after repeated use over time because the Veteran was not examiner during a flare-up or after repeated use. The Board notes that an opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer flare up opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds the December 2014 VA neck examination report to be incomplete for rating purposes and they will not be considered in adjudication of this claim. In any event, that examination did not find unfavorable ankylosis. An August 2011 VA examination diagnosed status post cervical laminectomy and fusion at C2. The Veteran reported constant 3/10 neck pain that increased to 4/10 or 5/10 pain daily and 8/10 pain when picking up certain things. The pain was described as burning, aching, and deep, but was not a flare-up pattern of pain. The Veteran was not found to have any incapacitating episodes of IVDS over the last 12 months. Range of motion testing found, at worst, forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. The Veteran was not found to have localized tenderness or pain to palpation, guarding, muscle spasm, loss of strength, muscle atrophy, or decreased sensation. An August 2013 MRI of the cervical spine found interval evolution of postsurgical changes with evidence of multilevel cervical laminectomy and posterolateral fusion with instrumentation and including anterior C7-T1 plate and screw fixation. There were no cervical spondylotic changes at C2-C3 with effacement of the anterior and posterior subarachnoid spaces. There was no cord signal abnormality. There was interval resolution of previously seen fluid collection in the dorsal soft tissues which was previously seen to extend cephalad to the C7 vertebral body level. During a July 2018 Board hearing, the Veteran described the current symptoms associated with the service-connected cervical spine disability and how it impacted his life. The Veteran indicated a worsening of his neck disability. In an August 2018 private medical examination, the Veteran was found to have postlaminectomy syndrome of the cervical spine. The Veteran was described as having chronic neck pain for which not much could be done. The Veteran was noted as having slight limitation in neck range of motion with lateral rotation, extension, and forward flexion all limited and giving him pain with more than 5 degrees of any type of rotation. The Veteran was not found to have muscle atrophy or IVDS. An October 2019 VA examination diagnosed spinal fusion. During the examination, the Veteran was found to have range of motion to, at worst, 15 degrees of forward flexion, 20 degrees of extension, 10 degrees of right and left lateral flexion, 15 degrees of right lateral rotation, and 20 degrees of left lateral rotation. The Veteran was also not found to have any episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. During the examination, the Veteran was found to have favorable ankylosis of the entire cervical spine. In a June 2020 addendum opinion, the examiner from the October 2019 examination stated that cervical ankylosis by definition is characterized by an inflexibility of the cervical spine. Favorable ankylosis means the spine is fused in a neutral position. The Veteran has a cervical fusion at C3-C7. Eventually, the rods and plates that immobilize the vertebra initially give way to the vertebra actually fusing together. The Veteran had very limited range of motion. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. During the pendency of this appeal, the Board finds that a higher rating is not warranted. The evidence of record does not show that the Veteran has ever had unfavorable ankylosis of the cervical spine commensurate with an increased rating of 40 percent pursuant to Diagnostic Code 5241. Pursuant to Diagnostic Code 5241, the Veteran's level of impairment of severe limited motion tantamount to favorable ankylosis is consistent with the currently assigned 30 percent rating. The Board has considered any additional functional loss due to pain or other factors, but finds that the evidence of record does not show additional functional loss that would warrant elevation to any higher ratings. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome formula based on incapacitating episodes. However, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician of any duration. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent for a cervical spine disability, effective June 22, 2011. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.