Citation Nr: 21039701 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-36 769 DATE: July 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent since January 8, 2020, for the service-connected degenerative joint disease of the cervical spine with narrowing of disc space at C5-C7 (cervical spine disability) is denied. FINDINGS OF FACT 1. For the period prior to January 8, 2020, the Veteran's service-connected cervical spine disability was not manifested by forward flexion of his cervical spine greater than 15 degrees but not greater than 30 degrees, 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, or intervertebral disc syndrome (IVDS). 2. For the period since January 8, 2020, the Veteran's service-connected cervical spine disability has been manifested by forward flexion functionally limited to no less than 30 degrees, with no ankylosis, objective evidence of other related neurological abnormalities, or IVDS. CONCLUSIONS OF LAW 1. Prior to January 8, 2020, the criteria for a rating in excess of 10 percent for the service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Since January 8, 2020, the criteria for a rating in excess of 20 percent for the service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1976 to December 2000. In July 2019, he testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In December 2019, the Board remanded this appeal for further development. In a September 2020 rating decision, the agency of original jurisdiction (AOJ) increased the Veteran's rating for his cervical spine disability from 10 percent to 20 percent, effective January 8, 2020. As that grant does not reflect the highest possible rating for this disability, the issue remains on appeal before the Board. Increased Ratings Cervical Spine Disability Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. When 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his cervical spine disability is more severe than the current disability ratings reflect. Specifically, he asserts that his cervical spine disability causes pain and limits his physical abilities. This disability is currently evaluated as 10 percent disabling prior to January 8, 2020 and as 20 percent disabling effective from January 8, 2020, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula For Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a 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 assigned 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 rating is assigned for forward flexion of the cervical spine 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, or forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 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 at least one 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) represents favorable ankylosis. Id. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, a 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. At a September 2011 VA examination, the Veteran reported having limitation in walking because of his cervical spine disability. He stated that, on average, he could walk 12 miles, but emphasized that it would take him up to 12 hours. He reported symptoms such as stiffness, weakness, fatigue, spasms, decreased motion, and numbness. He also reported severe pain, located on the middle of his back, and occurring two to three times a month. The pain was reported to last for two to three days each time. The Veteran also stated that the pain was exacerbated by physical activity and relieved by resting. He reported functional impairment, described as pain and weakness. It was noted that the Veteran was never hospitalized or had any surgery for his cervical spine disability. The Veteran reported that his disability did not result in any incapacitation in the past 12 months. It was also noted that the bone has never been infected and that the Veteran reported he did not experience any overall functional impairment from his cervical spine disability. On examination of the cervical spine, there was no evidence of radiating pain on movement. Guarding and muscle spasms were not shown. There was no muscle atrophy. The examination revealed tenderness, described as minimal paraspinous muscle tenderness. Ankylosis of the cervical spine was not present. Range of motion measurements were noted as forward flexion to 45 degrees; extension to 25 degrees, and 20 degrees with pain; right lateral flexion to 25 degrees, and 15 degrees with pain; left lateral flexion to 30 degrees, and 25 degrees with pain; right lateral rotation to 30 degrees, and 25 degrees with pain; and left lateral rotation to 35 degrees, with pain. Repetitive range of motion was possible, but did not result in additional limitation of motion. The examiner noted that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or coordination, after repetitive use. At a January 2020 cervical spine examination, the Veteran reported that he has had some episodic chronic problems with his neck, noted to be worse on cold rainy days. He stated that he can do his job effectively and that he has good days and bad days which are equally matched. He also stated that his bad days are never to the point where he cannot do his job effectively. He further reported that he takes Motrin and has been tolerating that well in the past. The Veteran reported flare-ups of the neck, occurring three to four times a week, and lasting three to four days. He stated that the flare-ups are moderate to severe and are precipitated by inclement weather, dampness, and coldness. He also stated that his neck flare-ups are alleviated by Thermacare heat pads that he places on his back during the day. The Veteran reported functional loss or functional impairment of the cervical spine as being unable to work and having difficulty lifting up to 40 pounds. Range of motion measurements were noted as forward flexion to 45 degrees, extension to zero degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner noted that range of motion itself contributes to functional loss in the form of severe loss of range of motion due to degenerative joint disease. Pain was noted on examination on rest or non-movement. There was evidence of pain with weight bearing. There was also 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 with no additional loss of function or range of motion. He was not examined immediately after repetitive use over time. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain and weakness significantly limit functional ability with repeated use over a period of time. There was no additional loss in range of motion for forward flexion and extension; however, lateral flexion and lateral rotation were further limited to 10 degrees for each side. The examination was not conducted during a flare-up. The examiner noted that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. Pain was noted to significantly limit functional ability with flare-ups. There was no additional loss in range of motion for forward flexion and extension; however, lateral flexion and lateral rotation were further limited to 10 degrees for each side. Guarding and muscle spasms were not shown. Muscle atrophy was not noted. Muscle strength testing results were normal. Ankylosis of the spine was not diagnosed, and no neurologic abnormalities were noted. IVDS of the cervical spine was not diagnosed. The examiner remarked that the Veteran has not been able to work in 15 years due to all medical conditions combined. He further noted that the Veteran's cervical spine disability does not really limit employment, but that it is the cervical spine combined with the Veteran's shoulders, back, diabetes, and depression that make him unemployable. VA treatment records note complaints and treatment for pain of the upper extremities. However, they contain no range of motion measurements or any other criteria used for rating purposes. The Board finds that the preponderance of the evidence of record weighs against the assignment of a rating in excess of 10 percent prior to January 8, 2020, or in excess of 20 percent since January 8, 2020, for the Veteran's service-connected cervical spine disability. The September 2011 VA examination measured forward flexion to 45 degrees, with combined range of motion greater than 170 degrees, and without evidence of muscle spasm, guarding, or IVDS. The January 2020 VA examination measured forward flexion to 45 degrees, and the examiner noted that there was no cervical spine ankylosis. There was also no evidence of IVDS. As such, a rating in excess of 10 percent is not warranted prior to January 8, 2020. A rating in excess of 20 percent is also not warranted for the Veteran's cervical spine disability at any time during the appeal period. In reaching this decision, the Board has considered whether a separate compensable evaluation is warranted for neurological symptoms associated with the Veteran's service-connected cervical spine disability at any time during the appeal period. However, the Board finds that the preponderance of the medical evidence of record reveals no significant chronic neurological abnormalities not already contemplated by separate disability ratings, due to his service-connected cervical spine disability. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a higher evaluation for the Veteran's cervical spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned disability ratings. In this regard, the Board observes that the Veteran complained of pain and limited motion during his VA examinations. However, the effect of the pain and limited motion in the Veteran's neck is contemplated in the currently assigned disability evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, the Veteran was not diagnosed with IVDS during any of the VA examinations. As such, he does not meet the criteria for an increased rating based on any such symptomatology. The Board has considered the Veteran's lay statements of record. However, to the extent he addresses questions of the medical nature and severity of his cervical spine disability, these statements are not competent lay evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of his service-connected disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. As such, the Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. The Board acknowledges the Veteran's complaints that his cervical spine disability impacts his ability to work. However, a January 2020 rating decision denied the Veteran entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and the Veteran has not appealed that decision. The record also indicates that the Veteran has not responded to VA's request for additional information that was necessary to further substantiate his claim for a TDIU. See January 2020 Rating Decision. Accordingly, a preponderance of the evidence of record is against the grant of a disability rating in excess of 10 percent prior to January 8, 2020, or in excess of 20 percent since January 8, 2020, for the service-connected cervical spine disability. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.