Citation Nr: 21039930
Decision Date: 07/01/21	Archive Date: 07/01/21

DOCKET NO. 16-56 289
DATE: July 1, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for cervical spine strain is denied.

FINDING OF FACT

Throughout the appeal period, the Veteran's cervical spine strain was manifested by no worse than 35 degrees of forward flexion and 260 degrees of combined range of motion of the cervical spine, to include functional loss resulting from pain, repetitive use and/or flare-ups without guarding, muscle spasm, ankylosis, any other incapacitating episodes due to intervertebral disc syndrome or associated objective neurological abnormalities.

CONCLUSION OF LAW

The criteria for an initial rating in excess rating in excess of 10 percent for a cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.59, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 2004 o July 2004 and from September 2007 to February 2012 to include service in the Southwest Asia.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

This case was most recently before the Board in April 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. 

In the April 2020 remand, the Board instructed the RO to obtain either an addendum VA opinion or VA examination to obtain the Veteran's cervical spine range of motion on passive motion and to address a discrepancy noted in the January 2020 VA examination. In August 2020, the VA examiner submitted an addendum VA opinion regarding the matters explained in the April 2020 Board remand. An updated etiology opinion was obtained in August 2020. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.").]

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the claims file is absent any medical evidence submitted or associated with the claims file subsequent to the revised rating effective date of February 7, 2021. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal; and the appropriate criteria is discussed below.

The Board also notes that the February 7, 2021 musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Code 5237. In other words, Diagnostic Code 5237 is the same both prior to and after February 7, 2021. Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (February 7, 2021).

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran generally asserts that he should have a higher rating for his cervical spine strain as it is worse than contemplated by the currently assigned rating. Specific argument in support of this appeal has not been presented.

In this case, the Veteran's cervical spine strain is rated 10 percent during the entire appeal period under 38 C.F.R. § 4.71, Diagnostic Code 5237.

Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is 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, 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 warranted when forward flexion of the cervical spine is 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; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A schedular maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar 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. See Note (2); see also Plate V.

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are 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. Id., Note (1). There is no evidence that the Veteran experiences incapacitating episodes. In this regard, the VA examiners reported that the Veteran did not experience IVDS, and the Veteran does not contend otherwise.

In January 2018 VA medical treatment record, the Veteran reported to the neck being at an angle. The physician treated the Veteran by recommending exercises to loosen and strengthen the Veteran's back and neck muscles.

The Veteran first reported for a VA examination to determine the severity of the cervical spine strain in October 2016. The Veteran reported that he had been experiencing intermittent but ongoing neck pain although he has not had physical therapy or chiropractic treatment and does not take medication for the pain. He does experience some "cracking and popping" sensation in the cervical spine with some loss of range of motion which makes driving difficult due to neck stiffness. The Veteran reported having flare-ups which unpredictably occurs between one to three times per month, characterized by increased stiffness and pain with decreased range of motion. On the range of motion testing, the Veteran demonstrated forward flexion to 45 degrees and extension to zero degrees; right lateral flexion to 35 degrees and left lateral flexion to 30 degrees; right lateral rotation to 45 degrees and left lateral rotation to 75 degrees. Although abnormal, the range of motion itself was not observed to contribute to a functional loss, to include after observed repetitive use and repeated use over time. Pain was noted with left lateral flexion and right lateral rotation and shown to cause some functional loss. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue of the cervical spine. The examination was not performed during flare-ups, and the examiner did not opine on this matter. The examiner also reported no guarding or muscle spasm of the cervical spine, or any other additional factors contributing to disability. The examiner also noted no sensory concerns, radiculopathy, or ankylosis.

On Board remand, the Veteran was afforded another VA examination in January 2020. During the examination, the Veteran responded that he did not have flare-ups of the cervical spine but reported that he has trouble with right and left neck rotation which limits his ability to look over his shoulder or behind his back. On the range of motion testing, the Veteran demonstrated at worst, forward flexion to 45 degrees, extension to zero degrees; right lateral flexion to 45 degrees and left lateral flexion to 45 degrees; painful right lateral rotation and left lateral rotation to 50 degrees. Range of motion and pain did contribute to functional loss in that the decreased rotation of the neck was shown to limit looking over the shoulder. Observed repetitive use showed no additional loss of function. Repeated use over time was not tested. Flare-up testing was not performed, but the Veteran did not report to having flare-ups. Nonetheless, the examiner opined that flare-ups did not significantly limit functional ability. The examiner also reported no guarding or muscle spasm of the cervical spine, or any other additional factors contributing to disability. The examiner also noted no sensory concerns, radiculopathy, or ankylosis. The examiner explained that the passive range of motion testing was not performed as it was not feasible to perform this in a safe and reasonable manner; however, the examiner also explained that passive range of motion testing is the same as the active range of motion testing documented in the report.

Based on the seeming discrepancy, the Board remanded the issue to clarify the statements provided in the January 2020 VA examination. In an addendum August 2020 VA opinion, the examiner explained that although passive motion testing was not done, passive and active range of motion are commonly equal at the tolerance levels of most patients and veterans in general. Upon review of the January 2020 VA examination, the August 2020 VA examiner opined that it is likely for the Veteran's range of motion to be the same at passive and active range of motion, which is due to the biomechanical factors in play, under tension, versus lack of tension on the musculoskeletal/tendinous structures during passive motion. The Veteran's diagnosis and findings were mild, and there were no contraindication to passive range of motion testing. The examiner explained that although loss of range of motion due to repetitive use is not noted and declined as speculative, as the Veteran denied flare-ups, the issue would be moot. Regarding extended repetitive use, the range of motion would be the same as the baseline for all but the right and left lateral rotation where 5 to 10 degree loss from baseline is a reasonable estimate. Therefore, the combined range of motion for the cervical spine could be at worst, 260 degrees.

A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities including his cervical spine strain; however, there is no indication that the Veteran's cervical spine symptoms manifest differently than those reported above.

Upon review, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's cervical spine strain at any point during the period on appeal. In that regard, a review of the record does not contain objective evidence that the Veteran experienced forward flexion that is greater than 30 degrees but not greater than 40 degrees; in both examinations, the Veteran's forward flexion tested at 45 degrees. Moreover, the combined range of motion has been shown to be, at worst, 260 degrees, to include taking in the maximum 10 degree difference in the left and right lateral rotation based on the comments of the August 2020 VA examiner. Further, there were no signs that the Veteran's cervical spine strain was productive of muscle spasm or guarding, and no incapacitating episodes were noted. The currently assigned 10 percent rating accurately reflects the Veteran's pain on movement of his cervical spine, to include during flare-ups and after repetitive use over time. To that end, the January 2020 examiner did indicate that range of motion did not contribute to functional loss but explained that it hindered the Veteran's ability to look over his shoulders based on the limited range of motion, and there was no evidence of additional loss of function or range of motion following repetitive-use or during flare-ups.

As noted above, during the appeal period range of motion testing was performed and showed, at worst, forward flexion to 45 degrees and a combined range of motion no less than 260 degrees. During the October 2016 and January 2020 examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, throughout the period on appeal, the Veteran reported flare-ups but described the flare-ups as consisting of increased pain. The Veteran's statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher rating is not warranted based on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, supra.

The Board has considered a higher rating based on incapacitating episodes. However, there is no indication from the record that the Veteran has experienced incapacitating episodes requiring medically prescribed bed rest. As such, the Veteran is appropriately rated based on pain, limitation of motion, and limitation of function. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additionally, ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran, and there is no evidence that the Veteran experience muscle spasms of the cervical spine.

With regard to disabilities of the spine, VA is to evaluate any associated objective neurologic abnormalities under appropriate diagnostic criteria. See Note (1) of the General Rating Formula. In this regard, the Veteran has not reported any pain or numbness in association with his cervical spine strain. The medical treatment records do not show, and the VA examiners did not report that the Veteran is suffering from neurological abnormalities as a result of his cervical spine strain. Therefore, absent evidence of objective neurologic abnormalities of upper extremities associated with the cervical spine disorder, the Board finds that separate ratings for such conditions are not warranted.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In this case, the October 2016 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above.  Pain was noted on examination in the October 2016 and January 2020 VA examination reports.  The effect of pain on range of motion is described above.  Regarding repeated use over time, the Board notes that October 2016 and January 2020 VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Board acknowledges that the October 2016 VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups.  However, the Board finds that all information required for rating purposes was provided. The January 2020 VA examination reflected measurements for active range of motion and noted that weight bearing and non-weight bearing range of motion was not applicable to the cervical spine. An August 2020 VA addendum examination explained likely that the Veteran's active and passive ranges of motion are the same, that any discrepancy tends to favor more passive range than active and that a baseline range of motion for all but right and lateral rotation would be five to 10 degree loss from baseline. As the Veteran's spine is not a paired joint, it is not possible to measure range of motion in the undamaged joint. The Veteran variously reported flare-ups and the January 2020 and August 2020 VA examiners estimated the range of motion during such flare-ups. Therefore, the examinations of records are adequate for rating purposes.

In reaching its conclusions, the Board acknowledges the Veteran's belief that his cervical spine disability is more severe than as reflected by the currently assigned disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his cervical spine disability

Consideration has also been given to assigning further staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, supra. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Finally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged that he is unable to secure and maintain substantially gainful employment. Although the Veteran's current employment status is unknown, he reported that he was hired for a new job in a July 2020 VA treatment note. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106  (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e. that the Veteran was employed, a TDIU claim was not raised.) As such, a Rice claim is not raised.

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In this case, the preponderance of the evidence is against an initial rating in excess of 10 percent rating and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102' Gilbert v. Derwinski, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. J. Kim, 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.