Citation Nr: 21031948 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 10-27 027 DATE: May 25, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for chronic headaches associated with cervicothoracic dysfunction from June 8, 2017 forward is denied. Entitlement to a disability rating in excess of 30 percent for cervicothoracic dysfunction from March 28, 2017 forward is denied. FINDINGS OF FACT 1. The Veteran's service-connected chronic headaches is assigned at 50 percent, the maximum rating authorized under Diagnostic Code 8100. 2. The severity and symptomatology of the Veteran's service-connected chronic headaches is adequately contemplated by the rating schedule. 3. The Veteran does not have unfavorable ankylosis of the entire cervical spine or the entire spine. 4. The severity and symptomatology of the Veteran's service-connected cervicothoracic dysfunction is adequately contemplated by the rating schedule. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for entitlement to a rating in excess of 50 percent for chronic headaches are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. Throughout the appeal period, the criteria for entitlement to a rating in excess of 30 percent for cervicothoracic dysfunction are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to April 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and remanded these matters to the Board for further development. However, in August 2019, the Board only remanded the issue of a compensable rating, for the period from April 29, 2008 to June 8, 2017 for headaches; a rating in excess of 10 percent, for the period from April 29, 2008 to March 28, 2017 for cervicothoracic dysfunction; and a rating in excess of 10 percent, effective April 29, 2008 for facial dyschromia, for further development. As a result, the limited issues of entitlement to a 50 percent rating for chronic headaches associated with cervicothoracic dysfunction from June 8, 2017 forward and a 30 percent for cervicothoracic dysfunction from March 28, 2017 forward were not addressed in the June 2020 supplemental statement of the case (SSOC). Thus, in October 2020, the Board remanded these two issues to the RO for further development and compliance with the February 2019 JMPR. The Board finds that the RO has substantially complied with the Board's remand directives and, as such, that it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a disability rating in excess of 50 percent for chronic headaches associated with cervicothoracic dysfunction from June 8, 2017 forward is denied. As an initial matter, the Board notes the Veteran's March 2021 Brief attempting to bring before the Board an issue of entitlement to an increased rating for chronic headaches prior to June 8, 2017. However, this issue was previously adjudicated in the Board's October 2020 and is no longer before the Board. Turning to the claim at hand, service connection for chronic headaches was granted in an October 2008 rating decision with a noncompensable rating effective, April 29, 2008. In January 2018, the Board granted a disability rating of 50 percent effective June 8, 2017. This grant represents a grant of the highest schedular rating for this issue throughout the period currently on appeal. Since the Veteran's service-connected chronic headaches has been assigned the maximum schedular rating available, there is no legal basis upon which to award a higher schedular evaluation. As such, entitlement to a rating in excess of 50 percent for chronic headaches on a schedular basis from June 8, 2017, is not warranted and the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, DC 8100. The Board also finds that referral of this claim for a higher rating on an extraschedular basis is not warranted. An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the diagnostic criteria of the rating schedule adequately describe the severity and symptomatology of the Veteran's service-connected chronic headaches; as such, the Board finds that rating criteria are not inadequate in this case and referral for extraschedular evaluation is not warranted. The diagnostic criteria for rating migraine headaches (DC 8100) contemplates migraine "attacks" which includes the Veteran's claimed episodic sensitivity to environmental exposures like light and sound. These criteria also contemplate attacks that cause the Veteran to need to lay down in such frequency that results in severe economic inadaptability. In short, there is nothing exceptional or unusual about the Veteran's chronic headaches as the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. In light of the above, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 2. Entitlement to a disability rating in excess of 30 percent for cervicothoracic dysfunction from March 28, 2017 forward is denied. The Veteran contends that she is entitled to a rating in excess of 30 percent for cervicothoracic dysfunction from March 28, 2017. The Veteran's cervicothoracic dysfunction is rated under 38 C.F.R. § 4.71a, DC 5237. The Board notes that VA recently amended the criteria for rating the musculoskeletal system and muscle injures, effective from February 7, 2021. However, the criteria were not changed in a manner that affects the analysis in this case. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242). while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that the Veteran has separate ratings for chronic headaches, residuals of neurolysis and scalenectomy for thoracic outlet syndrome with pectoralis minor strain and right arm paresthesia, and facial dyschromia (also claimed as facial numbness associated with residuals of neurolysis and scalenectomy for thoracic outlet syndrome with pectoralis minor strain and right arm paresthesia). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). For VA compensation purposes, 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 (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 40 percent disability rating is assigned when IVDS causes incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months. A 60 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the evidence of record, in March 2017, the Veteran underwent a VA cervical spine examination. A diagnosis of cervical strain was noted. The Veteran reported continuing pain and stiffness in her neck muscles and a preference to stay in a reclined position, using a supportive pillow. She further reported that moving, bending, rotating her head in certain positions causes pain and pressure which may radiate up into her head. She then reported pain at rest and with normal activities of daily life, as well as right arm paresthesias. Upon examination, range of motion was measured as follows: 30 degrees forward flexion; 40 degrees extension; 25 degrees right lateral flexion; 25 degrees left lateral flexion; 30 degrees right lateral rotation; and 30 degrees left lateral rotation. Pain was noted on all measurements, but not on weight bearing. Mild tenderness on palpation was noted. No additional loss of function was noted after observed repetitive use. Muscle spasm was not noted. Guarding that did not result in abnormal gait or spinal contour was noted. Ankylosis and IVDS were not noted. The Veteran reported occasional use of a neck brace. VA treatment notes from April 2017 indicate that the Veteran reported a spasm in her neck. An MRI performed that month revealed straightening of the cervical spine which is due to muscle spasm; no significant degenerative disease; and mild left C6-C7 neuroforaminal stenosis. During a May 2017 VA cervical spine examination, the examiner noted the Veteran's diagnosis of cervicothoracic dysfunction in 1997 and described the disorder as still active. The Veteran reported that she has difficulty holding her head up and the condition worsened. She has flare-ups of the neck described as a spasm, especially on the right side. She has numbness on the back of her neck and has a ticking pain on her head. When the neck pain gets bad, it radiates down to the rest of her body. She reported functional impairment in terms of driving, looking down, limited range of motion, bad memory, and tension headaches. Range of motion testing revealed forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 60 degrees. The examiner said that the Veteran's range of motion does not contribute to a functional loss. Pain was noted on forward flexion, extension, lateral flexion, and lateral rotation. There was evidence of pain with weight bearing. There was additional loss with repetition, resulting in forward flexion to 25, extension to 25, right and left lateral flexion to 25, and right and left lateral rotation to 55. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the neck. The examiner noted that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time. The predicted range of motion is flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 50 degrees. During flare ups, the predicted range of motion is flexion to 15 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 45 degrees. The Veteran did not have localized tenderness, guarding, or muscle spasm of the cervical spine. Muscle strength testing of the upper extremities was normal. There was no evidence of muscle atrophy. Deep tendon reflexes of the upper extremities were normal. A sensory examination of the upper extremities was normal aside from decreased sensation to the right forearm and hand/fingers. There was no evidence of radiculopathy or ankylosis of the spine. Additionally, the Veteran did not have any other neurologic abnormalities or intervertebral disc syndrome. The Veteran had a scar on her neck related to her service-connected cervicothoracic dysfunction, but it was not unstable and measured 8 centimeters by 0.1 centimeters. The examiner noted that the Veteran's neck condition impacts her ability to work because it causes difficulty with bending, lifting, and twisting. A January 2018 private treatment note from a rehabilitation facility reveals continued generalized pain in the Veteran's neck and spasms in her neck. The Veteran reported increased pain with movement, weather changes, noise, physical activity and improved with acupuncture, swimming stretching, massage, naproxen and resting. A May 2019 private treatment record from a rehabilitation facility notes active range of motion of the Veteran's cervical spine was measured as follows: 35 degrees flexion; 30 degrees extension with pain; 40 degrees right lateral flexion with pain; 40 degrees left lateral flexion with pain; 40 degrees right rotation with pain; and 40 degrees left rotation with pain. Spasm was noted, as was tenderness. A VA administered MRI from February 2020 reveals increasing degenerative change in C6-C7 including osteophyte encroachment of the bilateral C6-C7 neural foramina, and mild reversal cervical lordosis. The Veteran was examined by a VA chiropractor in November 2020 and complained of tightness in her neck. The chiropractor noted the Veteran's limited range of motion in all planes, with increased pain and balance problems on extension. A July 2020 MRI reported C6-C7 mild degenerative change; however, no significant spinal stenosis or foraminal narrowing was found. Upon review of the evidence, the Board finds that the preponderance of the evidence is against a disability rating in excess of 30 percent for cervicothoracic dysfunction from March 28, 2017 onward. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to pain, including more severe pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result symptomatology that more nearly approximates unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Board notes that there is no competent evidence, or even argument, that ankylosis has been present at any time relevant to this appeal. Furthermore, as the disability is assigned the highest rating available for limitation of motion without ankylosis, further consideration of DeLuca is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Regarding neurological impairment, the Veteran has already been granted service connection for her neurological symptoms, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. As such, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent from March 28, 2017 onward for cervicothoracic dysfunction. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board also finds that referral of this claim for a higher rating on an extraschedular basis is not warranted. The Board finds that the diagnostic criteria of the rating schedule adequately describe the severity and symptomatology of the Veteran's service-connected cervicothoracic dysfunction; as such, the Board finds that rating criteria are not inadequate in this case and referral for extraschedular evaluation is not warranted. The diagnostic criteria pertaining to musculoskeletal disabilities contemplates functional loss, which may be manifested by limitations such as decreased excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. As such, the Veteran's complaints of constant pain and decreased range of motion are specifically considered by the rating criteria. In short, the Board finds that the Veteran's symptoms that result from her cervicothoracic dysfunction as the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. In light of the above, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell; see Shipwash. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.