Citation Nr: 21032298 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-31 109 DATE: May 26, 2021 ORDER Prior to July 3, 2014, entitlement to a rating in excess of 20 percent for a cervical spine strain is denied. Effective July 3, 2014, entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine and intervertebral syndrome (previously rated as cervical spine strain) is denied. A 10 percent disability rating for the Veteran's service-connected patellar femoral pain syndrome, right knee is restored, effective December 1, 2015. FINDINGS OF FACT 1. Prior to July 3, 2014, the Veteran's cervical spine strain was not manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. 2. Effective July 3, 2014, the Veteran's degenerative arthritis of the cervical spine and intervertebral syndrome (previously rated as cervical spine strain) is not manifested by unfavorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. 3. The September 2015 rating decision, which reduced the disability rating for the Veteran's right knee disability, which had been in effect for greater than 5 years, from 10 percent to noncompensable, failed to comply with pertinent law and regulations. CONCLUSIONS OF LAW 1. Prior to July 3, 2014, the criteria for a disability evaluation in excess of 20 percent for cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243. 2. Effective July 3, 2014, the criteria for a disability evaluation in excess of 30 percent for degenerative arthritis of the cervical spine and intervertebral syndrome (previously rated as cervical spine strain) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243. 3. The September 2015 rating decision that reduced the disability rating for the Veteran's right knee disability, effective December 1, 2015, was improper and is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to March 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2013 and September 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's November 2013 notice of disagreement also included a disagreement with the rating assigned for the Veteran's service connected lumbosacral strain with degenerative changes. This issue was readjudicated in a September 2019 rating decision, and in a January 2020 rating decision. In March 2020, the Veteran filed a Decision Review Request: Higher Level Review (VA Form 20-0996). In so doing, he elected to opt into the AMA framework. This election withdrew his appeal pending in the Legacy appeals system. Consequently, the Board does not have jurisdiction over the issue. Entitlement to a rating in excess of 20 percent prior to July 3, 2014, and in excess of 30 percent thereafter for the Veteran's cervical spine disability is denied. In its October 2013 rating decision, the RO continued the Veteran's 20 percent rating for a cervical spine strain. In an April 2016 rating decision, the RO granted service connection for degenerative arthritis of the cervical spine and intervertebral syndrome (previously rated as cervical spine strain) and granted a 30 percent rating effective July 3, 2014. The date of the increase does not date all the way back to the date of the claim. Consequently, there are two distinct time periods to consider. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 and of the thoracolumbar spine is 240 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome A 60 percent disability rating is warranted for intervertebral disc syndrome when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Prior to July 3, 2014 Prior to July 3, 2014, the Veteran cervical spine disability has been rated as 20 percent disabling. For a higher rating to be warranted, the Veteran's disability would have to be manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. The Veteran underwent a VA examination in September 2013. He reported that he suffers from daily neck pain, and that it feels like he was hit by a baseball bat to the occipital region without radiation of pain. He reported pain that shoots down from his neck to his right hand, where he reported numbness. He reported flareups in the form of daily bouts of neck pain for which there is no relief. He reported pain upon looking up and when looking to the right. Upon examination the Veteran achieved 35 degrees of forward flexion, 30 degrees of extension, 20 degrees of right and left lateral flexion, 20 degrees of right rotation, and 30 degrees of left rotation. All range of motion exercises were performed without evidence of painful motion. He was able to perform repetitive use testing with no additional limitation of motion. He had localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. There was no guarding or muscle spasm of the cervical spine there was no muscle atrophy. Muscle strength testing was normal (5/5) in the upper extremities, except for right finger flexion where muscle strength testing measured 4/5. Deep tendon reflexes were normal. Sensory exam revealed decreased sensation in the right inner/outer forearm (C6/T1), and right hand/fingers (C6-8). There was mild numbness in the right upper extremity. There were no other signs or symptoms of radiculopathy. The Veteran had intervertebral disc syndrome but had not had any incapacitating episodes over the past 12 months. He did not use any assistive devices as a normal mode of locomotion. An MRI revealed disc bulge and osteophytes at C3-C4, C4-C5, and C5-C6 with anterior impression on the thecal sac. EMG/NCS of the right upper extremity were normal and did not demonstrate any radicular findings of the Veteran's subjective complaints of right hand/arm numbness. In his November 2013 notice of disagreement, the Veteran argued that he is entitled to a higher rating due to the fact that he has a bulging disc. The Board recognizes that the MRI revealed disc bulge and osteophytes at C3-C4, C4-C5, and C5-C6 with anterior impression on the thecal sac. However, ratings are assessed based on functional loss, which are expressed in terms of limitation of motion. Prior July 3, 2014, the evidence fails to reflect that the Veteran's cervical spine was manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. In regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the cervical spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. As the preponderance of the evidence is against the assignment of a rating in excess of 20 percent prior to July 3, 2014; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. Effective July 3, 2014 Effective July 3, 2014, the Veteran's cervical spine disability has been rated as 30 percent disabling. For a higher rating to be warranted, the Veteran's disability would have to be manifested by unfavorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. The Veteran underwent a VA examination on July 3, 2014. He reported persistent pain throughout the spine and neck. It was located primarily at the upper portion and traveled down to the right arm posteriorly to 4th and 5th fingers. He reported that medication does not help very much. Current limitations included marked difficulties looking upwards and from side to side. He reported that he is unable to lift anything of significant weight. He also reported that his neck pain interferes with his driving such that he cannot drive very far. He reported having great difficulties performing activities such as doing dishes, working around the house, or playing with his children. He reported flare ups that occur once or twice per month. During these episodes, he has to remain supine. The flare ups typically lasted about a day or two. The use of heating pads helped somewhat. Upon examination, the Veteran achieved 10 degrees of forward flexion, 15 degrees of extension, 10 degrees of right and left lateral flexion. There was objective evidence of pain at 0 degrees in all range of these range of motion exercises. He also achieved 20 degrees of right rotation (with objective evidence of pain at 20 degrees), and 15 degrees of left rotation (with objective evidence of pain at 15 degrees). He was able to perform repetitive use testing with no additional limitation of motion. He had functional loss due to less movement than normal; weakened movement; excess fatiguability; pain on movement; disturbance of locomotion; interference with sitting, standing, and/or weight bearing; and lack of endurance. There was localized pain or tenderness to palpation for joints/soft tissue of the cervical spine. There was no muscle atrophy. Muscle strength testing was normal (5/5). Deep tendon reflexes were normal. Sensory examination was normal. He did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. He had intervertebral disc syndrome but did not have any incapacitating episodes over the past 12 months. He used a cane occasionally due to a back condition. The examiner noted that the Veteran was last employed in 2008 and that he has been unable to work since then because of neck and back injuries. He has limitations related to turning his head in all planes of motion related to his neck condition. The examiner stated that the Veteran would have additional limitation during flare ups or when the neck is used repeatedly over a period of time, manifested primarily by pain and difficulty continuing neck movement. Additional loss of motion could not be ascertained since the primary disability is related to pain and loss of repetitive use rather than loss or range of motion. The Veteran also underwent a VA examination in July 2019. He reported symptoms consistent with those that he reported in July 2014. Upon examination, he achieved forward flexion from zero to 10 degrees, extension from zero to 15 degrees, right lateral flexion from zero to 20 degrees, left lateral flexion from zero to 15 degrees, right rotation from zero to 40 degrees, and left rotation from zero to 60 degrees. The examiner stated that the abnormal range of motion itself did not contribute to functional loss. He noted that there was pain on left lateral flexion and left rotation. There was no evidence of pain with weight bearing. The Veteran was tender to palpation to upper C2-C4 region. He was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that pain significantly limited functional ability with repeated use over a period of time. However, he then estimated that with repeated use overtime, there would be no additional limitation of motion. The examiner opined that during flare ups, the Veteran would be able to achieve flexion from zero to 10 degrees, extension from zero to 15 degrees, right and left lateral flexion from zero to 10 degrees, and right and left rotation from zero to 10 degrees. There was no guarding or muscle spasm of the cervical spine. Muscle strength testing was normal. Sensory examination was normal. There was no evidence of radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. The Veteran had intervertebral disc syndrome but had not had any episodes that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices as a normal mode of locomotion. An MRI revealed very minimal degenerative changes of the cervical spine without spinal canal or neural foraminal stenosis. The examiner noted that the Veteran's neck condition would limit prolonged turning and swiveling of his head such as when driving a forklift or working at a range due to pain and decreased range of motion. The evidence fails to reflect that the Veteran's cervical spine is manifested by unfavorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. To the contrary, both the July 2014 and July 2019 VA examiners specifically noted that there was no ankylosis, and that the Veteran had not had any incapacitating episodes (requiring bed rest prescribed by a physician and treatment by a physician) in the past 12 months. As the preponderance of the evidence is against the assignment of a rating in excess of 30 percent; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. The reduction from a 10 percent rating to a noncompensable rating for the Veteran's patellar femoral pain syndrome, right knee, effective December 1, 2015, was improper. The Veteran asserts that the 10 percent disability rating for his service-connected right knee disability should be restored. For ratings in effect for five years or more, there are specific requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344. The appropriate dates to be used for measuring the five-year time period, according to VA regulation, are the effective dates, i.e., the date that the disability rating subject to the reduction became effective is to be used as the beginning date and the date that the reduction was to become effective is to be used as the ending date. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). The Veteran was assigned the 10 percent disability rating for the right knee disability by way of an August 2000 rating decision, effective from March 20, 2000. Therefore, when the rating was reduced by way of a September 2015 rating decision, effective December 1, 2015, it had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply. The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for periodically increasing or decreasing a disability rating. See 38 C.F.R. § 3.344 (a)-(c); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a), (b). That regulation provides that rating agencies will handle cases affected by a change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. Under 38 C.F.R. § 3.344 (a), which pertains to cases where examination reports suggest improvement, it is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). The Board finds that the reduction is void because the provisions of 38 C.F.R. § 3.344 were not met. Neither the October 2013 rating decision which proposed a reduction of the Veteran's right knee disability rating, nor the September 2015 rating decision that reduced the rating, considered or discussed whether the September 2013 reexamination was full and complete and whether there was actually sustained material improvement that reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath, 1 Vet. App. at 594. Essentially, the October 2013 and September 2015 rating decisions provided an increased rating analysis and did not reflect full consideration or application of the procedures of 38 C.F.R. § 3.44 (a). Likewise, the October 2016 statement of the case only noted the findings of the September 2013 VA examination and the fact that the Veteran failed to report for another scheduled examination. The Board notes that at no time did the RO compare the September 2013 VA examination to the June 2000 VA examination (upon which the 10 percent rating was based) to determine if the Veteran actually sustained material improvement. The Board notes that a comparison of the two reflects them to be substantially similar. In any case, the Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck v. West, 12 Vet. App. 288, 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Accordingly, the 10 percent rating assigned for the Veteran's patellar femoral pain syndrome, right knee must be restored, effective December 1, 2015. Given the outcome warranted in view of this procedural error, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. The Board also notes that the Veteran has not sought a rating in excess of 10 percent. To the contrary, in his November 2013 notice of disagreement, he specifically indicated that he sought a 10 percent rating for his right knee disability. Consequently, discussion regarding the propriety of an increased rating is unwarranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.