Citation Nr: 21030200 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-35 301 DATE: May 18, 2021 ORDER Entitlement to an increased rating for cervical spine disability rated as 10 percent prior to June 17, 2019, and in excess of 20 percent since June 17, 2019, is denied. REMANDED Entitlement to an initial rating for thoracic spine disability in excess of 10 percent prior to August 27, 2014, and in excess of 20 percent since August 27, 2014, is remanded. Entitlement to a finding of individual unemployability (TDIU) prior to August 29, 2018, for the purposes of establishing special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is remanded. FINDINGS OF FACT 1. Prior to June 17, 2019, forward flexion is not shown to be 30 degrees or less, the combined range of motion of the cervical spine is greater than 170 degrees, and muscle spasm or guarding is not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Since June 17, 2019, there is no evidence of forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for an increased rating for cervical spine disability in excess of 10 percent prior to June 17, 2019, and in excess of 20 percent on and after June 17, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 2001 to March 2005 and from April 2009 to May 2010. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's case was previously remanded in August 2019 and January 2020 for additional development. The case has now been returned to the Board for review. On September 25, 2019, VA received a Form 10182 (Appeals Modernization Act "AMA" Board appeal) and subsequently, the Veteran's claim for entitlement to an initial increased rating for a thoracic spine disability was erroneously placed on the AMA Hearing docket. Unfortunately, a review of the claims folder reveals that the September 25, 2019 Form 10182 was not received within one year of notification of the rating decision or 60 days from the issuance of the SOC or SSOC. As such, the claim cannot be processed under the AMA framework. Therefore, the Board will apply the legacy framework. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Though the notice was not provided prior to the initial adjudication of the Veteran's claim, the Veteran was provided general notice in May 2019 and the claim has been readjudicated. The RO associated the Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration (SSA) records with the claims folder. SSA records were obtained in accordance with the Board's August 2019 remand. In February 2020, the Veteran was asked to provide any release forms or submit copies of his own private treatment records in accordance with the Board's January 2020 remand. He responded that he did not have any private records. Updated VA treatment records were obtained and associated with the claims folder. No other relevant records have been identified and are outstanding. As for VA examinations, the Veteran was provided a VA examination in July 2017 that is adequate for rating purposes. However, as will be discussed in greater detail below, VA examinations completed in February 2017, June 2018, and June 2019 are inadequate for rating purposes. The Board notes that the Veteran submitted correspondence regarding the inadequacy of the February 2017 VA examination report and its range of motion findings and possibly the June 2019 VA examination though it is difficult for the Board to interpret. Regardless, as explained above, the Board agrees that these February 2017 and June 2019 VA examination range of motion findings are inadequate for rating purposes. As noted in the Board's 2020 remand, the June 2019 VA examiner commented that the Veteran's pain would significantly limit functional ability with flare-ups and pain and lack of endurance would limit functional ability with repeated use over time, but provided estimated range of motion findings that were higher than those found on physical examination that day. The February 2021 VA examiner was asked to comment on those 2019 findings, but was unable to do so as it would be impossible to know because the Veteran was not willing or able to answer any questions but continued to revert to his back pain. The Board finds that although the February 2021 examiner could not answer the questions concerning flare-ups, the examiner provided reasoning for not doing so, and the opinion substantially complies with the Board's remand directive. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The 2021 VA examination is otherwise adequate concerning the manifestations of the Veteran's disability. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). As such, VA has satisfied its duty to assist. Increased Ratings Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As it pertains to the cervical spine, the General Rating Formula provides a 20 percent disability rating 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 30 percent disability rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 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. The Board notes that the Veteran's cervical spine disability was originally coded under Diagnostic Code 5237 and is now coded under Diagnostic Codes 5242-5243. Diagnostic Code 5243 has been revised effective February 7, 2021. In this respect, Diagnostic Code 5243 now only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5242 is assigned for all other disc diagnoses. Regardless of any change to the rating criteria, there is no evidence of intervertebral disc syndrome or incapacitating episodes prescribed by bed rest to warrant application of the formula for rating invertebral disc syndrome. Though the Veteran contends that he is diagnosed with invertebral disc syndrome, the evidence of record does not reflect that diagnosis. The Veteran is not considered competent to diagnose himself with intervertebral disc syndrome a condition that requires medical expertise and knowledge for diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board will evaluate the Veteran's cervical spine disability under the general rating formula. In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While 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). Additionally, flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 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, with range of motion measurements of the opposite undamaged joint. Cervical spine disability VA medical treatment records show that the Veteran has reported neck pain. The Veteran was provided a VA examination in February 2017. The examiner reviewed the claims folder. Regarding history of the disability, the Veteran was found to have degenerative disc disease, degenerative arthritis, and foraminal narrowing. The Veteran stated that he had some daily aching pain, good days and bad days, and no difficulty with daily activities. He did not report flare-ups and did not report having any functional loss or functional impairment of the cervical spine regardless of repetitive use. However, because the examiner opined that he was unable to provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a time without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing functioning under these conditions and that the Veteran was not being observed over a period of time. In addition, the examiner found that non-weight bearing could not be performed or was not medically appropriate and that passive range of motion could not be performed or was not medically appropriate without any explanation. Accordingly, the range of motion findings are not adequate for rating purposes. The Veteran was provided a VA examination in July 2017. The Veteran reported that his neck had gotten sorer since his last VA examination. He noticed limitation when he turned his neck from left to right for more than a year. He reported 5-7/10 on average and 8-9/10 at its worst. The Veteran reported having 8-9/10 pain about 6 to 7 days a week lasting for hours. The Veteran denied seeking treatment for his neck pain. He took Methocarbamol and extra-strength Tylenol as needed. The Veteran did not report flare-ups and reported functional impairment described as roller coaster rides or being put in a headlock. On examination, forward flexion was 0 to 45 degrees; extension was 0 to 45 degrees; right lateral flexion was 0 to 45 degrees; left lateral rotation from 0 to 45 degrees; right lateral rotation was 0 to 60 degrees; and left lateral rotation was 0 to 70 degrees. There was no pain on examination and the range of motion itself did not contribute to a functional loss. There was no pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The examiner determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or spasms. Muscle strength testing was normal. Reflexes were normal. There was no radiculopathy and no ankylosis. There was no vertebral fracture with loss of 50 percent or more of height. The examiner noted that there was no pain with non-weight bearing and that passive range of motion could not be performed or was not medically appropriate because of the risk of iatrogenic injury with passive manipulation of the spine. There was no pain with weight-bearing on examination. The Veteran was provided another examination in June 2018. The Veteran reported that his neck pain was higher than a 10 and described tightness with rotation of his head in trapezius muscles. His pain was sharp, constant, and daily. His pain was aggravated by rotation of head and placing his head in a reclining position caused soreness. The Veteran took Motrin 400 mg. as needed, a thermogenic muscle rub, and no physical therapy. The range of motion findings are not adequate for rating purposes because the examiner stated that he could not provide an opinion regarding whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups without resorting to mere speculation. The examiner stated that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions without any other reasoning. SSA records show that the Veteran reported that he avoided any jobs that involved long period of standing or a lot of lifting. He reported a pain level of six to seven involving all activities and sitting for any length of time was painful. He had trouble sleeping due to his pain. He also stated that he had to pop his neck due to pain and that he was uncomfortable lifting, squatting, and bending. In June 2019, the Veteran was provided a VA examination. The Veteran reported ongoing pain and that walking aggravated it. The examiner found that the Veteran's disability limited his ability to walk or drive for prolonged periods, limited lifting activities, especially overhead. This examination was used as the basis to award a higher staged 20 percent rating; however, the Board nonetheless finds that the range of motion findings are not adequate for rating purposes. When addressing additional functional impairment and loss during flare-ups and periods of repeated use, the examiner provided higher flexion measurements than those found on physical examination without any explanation. In February 2021, the Veteran was provided a VA examination. The examiner reviewed the claims folder. The Veteran reported that he was very frustrated over a prior evaluation. A chaperone was in the examination room at the Veteran's request and the Veteran refused to answer questions. As to course of the condition since onset, the Veteran could not answer. Regarding current symptoms, the Veteran could not answer, but stated that moving his neck a lot made him pop his back, that his neck popped when he moved it, and that he had pain in neck, but could not answer when or where. He reported no treatment, medications, or surgery. The Veteran reported flare-ups but refused to elaborate. He reported functional loss or impairment including but not limited to after repeated use over time, but refused to elaborate. Range of motion findings show forward flexion to 45 degrees; extension endpoint to 45 degrees; right lateral flexion endpoint to 40 degrees; left lateral flexion endpoint to 40 degrees; right lateral rotation endpoint to 70 degrees; and left lateral rotation endpoint to 70 degrees. Left lateral flexion and left lateral rotation exhibited pain. Passive range of motion testing was not performed because it was medically contraindicated and was not medically advisable because it could cause the Veteran severe pain or the risk of further injury. There was evidence of pain on weight-bearing, non-weight bearing, active motion, and passive motion that can cause functional loss. The pain made him unwilling to turn or rotate to left, and made it hard to drive. There was objective evidence of crepitus and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. Concerning repeated use over time, the examiner found that pain would significantly limit functional ability. The examiner estimated that the range of motion would be forward flexion to 40 degrees; extension endpoint to 40 degrees; right lateral flexion endpoint to 30 degrees; left lateral flexion endpoint to 30 degrees; right lateral rotation endpoint to 60 degrees; and left lateral rotation endpoint to 60 degrees. As to flare-ups, the examiner found that pain would significantly limit functional ability and the examiner estimated that range of motion would be forward flexion to 40 degrees; extension endpoint to 40 degrees; right lateral flexion endpoint to 30 degrees; left lateral flexion endpoint to 30 degrees; right lateral rotation endpoint to 60 degrees; and left lateral rotation endpoint to 60 degrees. The Veteran did not have localized tenderness, guarding or muscle spasm of the cervical spine. Concerning any additional factors contributing to disability, the Veteran was unable to provide history. Muscle strength testing was normal, and reflexes were normal. Sensory examination was normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. Concerning additional questions, the examiner stated that the information regarding flare-ups was not available due to the Veteran's behavior on examination, and that it was not at least as likely as not that the Veteran's range of motion would be additionally limited to 15 degrees or less because the examination showed good range of motion. Prior to June 17, 2019, the evidence of record does not reflect cervical spine flexion of 30 degrees or less and does not otherwise reflect a 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. Though a June 2015 MRI showed that a loss of lordosis "may" reflect a strain or spasm, such is speculative as to the cause of the loss of lordosis and the Board finds that it does not demonstrate that the Veteran had muscle spasm or guarding severe enough to result in reversed lordosis. A May 15, 2019, VA treatment record shows neck pain and minimal spasm of the paraspinals and a May 2019 x-ray also shows straightening of spinal lordosis. However, again, the evidence does not show or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not show that such impairment would be akin to forward flexion of 30 degrees or less. During the July 2017 VA examination report, the Veteran did not report flare-ups, and the examiner determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. From June 17, 2019, the evidence of record does not reflect forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine to warrant a rating in excess of 20 percent. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not reflect that such impairment would be akin to forward flexion of 15 degrees or less or manifest in ankylosis. The 2021 VA examiner considered functional loss and impairment during flare-ups and periods of repeated use, but estimated that flexion would remain at 40 degrees. Accordingly, a higher rating is not warranted. The Board recognizes the Veteran's argument concerning how his cervical spine disability is coded. First, there is no evidence of intervertebral disc syndrome to warrant application of the formula for rating intervertebral disc syndrome. Concerning any other assigned code, the Veteran's cervical spine disability would still be rated under the general rating formula and would not result in any change in his ratings. A preponderance of the evidence is against the Veteran's claim and the claim is denied. REASONS FOR REMAND Thoracic spine disability Unfortunately, the Board finds that another remand is required concerning the Veteran's thoracic spine disability. In Correia v. McDonald, 28 Vet. App. 158 (2016) the Court held that a VA examination of the joints must, wherever possible, include range of motion testing for pain on both active and passive motion, as well as in weightbearing and non-weightbearing. The Court further held that if for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. In July 2020, the Veteran was provided a VA examination for his thoracic spine. The examiner found that range of motion was normal and that there was no pain on examination and no pain with weight-bearing. In the "remarks" section of the examination report, the examiner stated that passive range of motion of the spine was not performed as it was "not feasible to do this in a safe and reasonable manner." The examiner also stated that "non-weight bearing assessment was not applicable." The examiner did not provide reasoning for why the passive range of motion testing would be unsafe or why non-weight bearing was inapplicable. When the examiner was asked to provide an addendum to the July 2020 VA examination report as to why she did not complete passive range of motion testing, the examiner stated that the Veteran had normal range of motion for the examination and normal excursion of the back. She then quoted the portion of the July 2020 VA examination report that explained that the Veteran performed range of motion without pain and that the examination was normal. However, the examiner still did not explain why passive range of motion testing was not completed or why non-weight bearing was inapplicable, thereby not complying with Correia. Further, the Board's January 2020 remand requested that the VA examiner refer to prior VA examinations completed in 2014 and 2017 and state whether range of motion testing was required to adequately assess the Veteran's pain on motion and to explain why or why not; whether there was any structural abnormality of the involved joint; and whether testing in weight-bearing was more demonstrative of the degree of pathology in the Veteran's case or whether testing in non-weight bearing conditions would better demonstrate the severity of the disability. The examiner did not address these questions in the July 2020 VA examination report. In the addendum to the July 2020 VA examination report, the examiner stated that the range of motion findings were normal on examination and that there was no structural abnormality of the back. However, the examiner did not address the remaining questions asked by the January 2020 remand. Thus, a remand for a new VA examination and opinions is required. TDIU prior to August 29, 2018, for the purposes of establishing SMC As discussed in the Board's January 2020 remand, while the Veteran is in receipt of a total schedular disability rating for his PTSD throughout the entire period on appeal, the Court held in Bradley v. Peake, 22 Vet. App. 280 (2008) that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more. Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. The Board therefore finds that the issue of entitlement to TDIU prior to August 29, 2018, for the purposes of establishing SMC under 38 U.S.C. § 1114(s) is inextricably intertwined with the remanded issue of entitlement to an increased initial rating for the Veteran's thoracic spine disability and must be remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination for his thoracic spine disability. The claims folder must be made available for review. The examiner must provide all manifestations of the disability. The examiner must also address the following: (a.) On examination in February 2017, range of motion was not tested on passive ROM and/or in non-weight bearing conditions. The March 2014 examination report does not indicate whether ROM testing was performed using active and passive or under weight-bearing and non-weight bearing conditions. Please state whether range of motion testing [in such conditions] was required to adequately assess the Veteran's pain on motion. Please explain why or why not. (b.) Please state whether there is any structural abnormality of the involved joint (that is to say, whether normal excursion of the joint is impaired/not possible). If there is a structural abnormality of the joint, does that abnormality impact the joint such that passive range of motion in this case would be more limited than active? (c.) Please explain whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case, or whether testing in non-weight bearing conditions would better demonstrate the severity of the disability. A full and complete rationale must be provided for any opinion reached. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided. 2. Then, readjudicate the remanded matters, and if still denied, issue an appropriate supplemental statement of the case and return the matter to the Board for review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.