Citation Nr: 21041367 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-26 905 DATE: July 8, 2021 ORDER A rating in excess of 20 percent prior to December 19, 2019, and in excess of 30 percent therefrom for mitochondrial myopathy of the cervical spine is denied. Special monthly compensation (SMC) based on the need for aid and attendance prior to January 1, 2013 and from March 1, 2014 forward is denied. FINDINGS OF FACT 1. For the period prior to December 19, 2019, the weight of the evidence is against a finding that service-connected mitochondrial myopathy, cervical spine status post laminectomy caused forward flexion functionally limited to 15 degrees or less; favorable ankylosis of the entire cervical spine; incapacitating episodes of intervertebral disc syndrome lasting four weeks or more in a 12 month period; or neurological abnormalities requiring evaluation under other diagnostic code. 2. For the period from December 19, 2019, the weight of the evidence is against a finding that service-connected mitochondrial myopathy, cervical spine status post laminectomy is manifested by unfavorable ankylosis of the entire cervical spine, incapacitating episodes of intervertebral disc syndrome of four (4) weeks or more; or of neurological abnormalities requiring evaluation under other diagnostic code. 3. The weight of the evidence is against a finding that prior to January 23, 2013 and beginning March 1, 2014 the Veteran was/is blind, a patient in a nursing home, bedridden, or otherwise is in need of the aid and attendance of another person. CONCLUSIONS OF LAW 1. For the period prior to December 19, 2019, the criteria for an evaluation greater than 20 percent for mitochondrial myopathy, cervical spine status post laminectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243; 85 Fed. Reg. 76453, 76463. 2. For the period from December 19, 2019, the criteria for an evaluation greater than 30 percent for mitochondrial myopathy, cervical spine status post laminectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243; 85 Fed. Reg. 76453, 76463. 3. The criteria for entitlement to SMC based on the need for aid and attendance of another prior to January 23, 2013 and beginning March 1, 2014 have not been met. 38U.S.C. §§1114, 5107; 38C.F.R. §§3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to September 1975.This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2015 and July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were most recently before the Board in June 2020. At that time, the Board remanded the appeal to obtain a retrospective addendum opinion from an April 2020 VA examiner, or another qualified examiner, that specifically estimated the Veteran's loss of range of motion during flare-ups of the cervical spine disability. A VA examiner provided the requested opinion in February 2021. Thus, the requested development has been requested and the appeal has returned to the Board for further adjudication. i) A rating in excess of 20 percent prior to December 19, 2019, and in excess of 30 percent therefrom for mitochondrial myopathy of the cervical spine is denied. The Veteran seeks ratings in excess of 20 percent for the service-connected cervical spine disability for the period prior to December 19, 2019, and in excess of 30 percent therefrom. Service connection for mitochondrial myopathy of the neck was granted in a July 1991 rating decision, and evaluated as 20 percent disabling, effective in August 1984under Diagnostic Code 8599-8510. In February 2015, a 100 percent evaluation was granted for treatment necessitating convalescence (38C.F.R. §4.30 (2017)) from March 12, 2003. The 20 percent evaluation was resumed from July 1, 2003. The RO described the disability as mitochondrial myopathy cervical spine, status post laminectomy, and changed the diagnostic code under which the disability was evaluated to Diagnostic Code 5237. In a January 2020 rating action, the RO granted a 30 percent rating to the service-connected cervical spine disability, effective December 19, 2019, the date of a VA examination report reflecting an increase in severity of this disability (i.e., forward flexion limited to 10 degrees). Diagnostic Code 5237 contemplates cervical strain. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability 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 disability rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38C.F.R. §4.71a, Diagnostic Codes 5235 through 5242. Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate diagnostic code. Note 2 following the General Rating Formal provides that normal forward flexion of the thoracolumbar spine, including 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. 38C.F.R. §4.71a, Diagnostic Codes 5235 through 5242. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a , Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. In light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited effect because they do not change how the cervical spine is rated. Rather, the revisions revised Diagnostic Codes 5242 and 5243, which states that Diagnostic Code 5243 is assigned when there is disc herniation with compression and or irritation of the adjacent nerve root; and to assign Diagnostic Code 5242 for all other diagnoses. Diagnostic Code 5244 also adds a new diagnostic code for traumatic paralysis. Here, the Veteran has not been diagnosed, nor does he assert, that he has IVDS or traumatic paralysis and the revisions do not impact the Veteran's cervical spine rating. Period Prior to December 19, 2019 The Veteran seeks a rating in excess of 20 percent for the service-connected cervical spine for the period prior to December 19, 2019. The Board finds that the preponderance of the evidence of record is against a rating in excess of 20 percent for the cervical spine disability for the prescribed period under the IVDS criteria or the General Rating Formula for Diseases and Injuries of the Spine. First, the evidence of record does not show that the Veteran has experienced any IVDS during the period prior to December 19, 2019. The December 2013 VA examiner did not indicate the presence of IVDS and IVDS is not shown on VA and/or private treatment records for the prescribed period. Moreover, there is no evidence showing that the Veteran has ever been prescribed bed rest to treat his cervical spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine. The Board finds that a higher rating in excess of 20 percent is also not warranted for the cervical spine under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to December 19, 2019. In order for the Veteran to be awarded a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence would have to show forward flexion of the cervical spine at 15 degrees or less, or favorable ankylosis of the entire cervical spine. This has not been demonstrated in the Veteran's case. At no time during the prescribed period does the medical evidence reflect that forward flexion has been limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. Specifically, during the December 2013 VA examination, forward flexion of the cervical spine was limited to 20 degrees. In addition, there was no evidence of cervical ankylosis. Thus, in view of the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to December 19, 2019. As provided in Note 1 following the General Rating Formula, separate, compensable evaluations can be warranted for associated neurological impairment. However, the medical evidence does not show that there are any neurological symptoms or abnormalities that can be attributed to the service-connected cervical spine disability. The Board notes that in reaching this conclusion, consideration has been given to the impact of factors such as weakness, pain, fatigability, etc. As noted by the Board in its June 2020 remand, in an April 2019 memorandum decision, the Court vacated and remanded the portion of an April 2018 Board decision which denied entitlement to an increased rating for a cervical spine disability. The Court noted that clarification of the December 2013 cervical spine examination was necessary because the Veteran had reported flare-ups of the disability, but no attempt had been made at the time to estimate, in terms of loss of range of motion, the level of functional loss attributable to the flare-ups. In an attempt to cure this defect in the December 2013 examination report, the Board remanded the issue in March 2020, requesting an addendum opinion estimating the amount of additional limitation of motion, if any, occurring during the flare-ups reported during the December 2013 examination. In April 2020, the RO obtained such an opinion. However, the examiner only provided estimates for loss of motion following repeated use over time and not for flare-ups, the latter of which was the primary focus of the April 2019 memorandum decision, as well as two previous Board remands. Thus, in June 2020, the Board once again remanded the appeal to obtain an addendum retrospective opinion from the April 2020 VA examiner, or another qualified examiner, that specifically estimated the Veteran's loss of range of motion during flare-ups of the cervical spine disability in December 2013. A VA examiner provided the requested retrospective opinion in February 2021. The VA examiner concluded that the only symptoms reported from 2013 in regards to flare-ups included increased pain from sudden movements, and that there was no indication that that had caused additional loss during flare-ups. Thus, the initial range of cervical spine motion measurements documented in 2013 would reflect the range of motion during flare-ups as the Veteran's testimony and evidence on hand from 2013 does not give information otherwise that the range of motion had decreased during flare-ups. As such, a higher rating is not warranted based on the DeLuca factors for the cervical spine for the period prior to December 19, 2019. Period from December 19, 2019 The Veteran seeks a rating in excess of 30 percent for the service-connected cervical spine for the period from December 19, 2019. The Board finds that the preponderance of the evidence of record is against a rating in excess of 30 percent for the cervical spine disability for the prescribed period. under the IVDS or General Rating Formula for Diseases and Injuries of the Spine and IVDS criteria. At the outset, the evidence of record does not show that the Veteran has experienced any IVDS during the period from December 19, 2019. The December 2019 VA examiner did not indicate the presence of IVDS and IVDS is not shown on VA and/or private treatment records for the prescribed period. Moreover, there is no evidence showing that the Veteran has ever been prescribed bed rest to treat his cervical spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine. The Board finds that a higher rating in excess of 30 percent for the cervical spine disability is also not warranted for the prescribed period under the General Rating Formula for Diseases and Injuries of the Spine. Under this formula, the next higher rating, 40 percent, requires evidence of unfavorable ankylosis of the entire cervical spine. This has not been demonstrated in the Veteran's case. Here, a December 2019 VA examiner specifically noted that the Veteran did not have cervical spine ankylosis, favorable or unfavorable. Thus, a higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for the cervical spine disability for the period from December 19, 2019. As provided in Note 1 following the General Rating Formula, separate, compensable evaluations can be warranted for associated neurological impairment. However, the medical evidence does not show that there are any neurological symptoms or abnormalities that can be attributed to the service-connected cervical spine disability. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38C.F.R. §§4.40 and 4.45. See also DeLuca v. Brown,8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38C.F.R. §4.59. Here, the Veteran clearly experienced painful motion on range of motion testing of the cervical spine at the December 2019 VA examination. However, even if his range of motion were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). 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. Id. at 43; see 38C.F.R. §4.40. The Veteran is already in receipt of the minimum compensable rating under this provision during this period on appeal and the pain was not shown to so functionally limit his cervical spine range of motion as to warrant a higher rating. In this regard, the Veteran demonstrated forward flexion to 10 degrees at the December 2019 VA examination. In an April 2020 opinion, a VA examiner reviewed this examination report and stated that the Veteran demonstrated forward flexion of the cervical spine to 20 degrees after repetitive use over time. Thus, the Veteran demonstrated an increase in forward flexion even after repetitive use. Accordingly, a rating in excess of 30 percent for the cervical spine from December 19, 2019 is denied. ii) Entitlement to SMC based on the need for aid and attendance prior to January 1, 2013 and from March 1, 2014 forward is denied. The Veteran seeks entitlement to SMC based on the need for the aid and attendance of another. The Veteran has been in receipt of SMC under 38U.S.C.A. §1114(s); 38C.F.R. §3.350(i) since July 29, 1992. However, as SMC at the aid and attendance rate is a greater benefit, the claim for SMC remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). SMC at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38C.F.R. §3.352(a). 38 U.S.C. § 1114(l); 38C.F.R. §3.350(b)(3). Pursuant to 38C.F.R. §3.350(b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38C.F.R. §3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38C.F.R. §3.352(a). Also, under this section, "bedridden" status will be a proper basis for the determination of the need for regular aid and attendance. For the purposes of this section, "bedridden" means that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38C.F.R. §3.352(a). However, the medical evidence does not show that the Veteran requires the aid and attendance of another for the prescribed period on appeal. December and May 2015 Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance show that the Veteran is able to feed himself, is not legally blind or a patient in a nursing home, and does not need assistance in bathing and tending to other hygiene needs. Furthermore, while he does rely on another person to help him manage his medications, he has not been found unable to manage his own finances. He is able to leave his home and immediate premises periodically and daily, when needed, for appointments and physical therapy. The Veteran has argued that he is entitled to SMC based on the need for the aid and attendance of another, and by this decision, the Board has acknowledged that, during the time period from January 23, 2013 to March 1, 2014 which he was recovering from right shoulder replacement surgery, he was so entitled. However, for the time period prior to January 23, 2013 and beginning March 1, 2014, the medical evidence does not show that he meets the criteria for this benefit. The Veteran is not competent to opine as to whether the limitations of his service-connected disabilities require the aid and assistance of another within the meaning of the regulations. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his statements, on their own, are of little probative value. Accordingly, the evidence supports the grant of SMC based on the need for the aid and attendance of another from January 23, 2013 to March 1, 2014; but the weight of the evidence is against the grant of SMC based on the need for the aid and attendance of another prior to January 23, 2013 and beginning March 1, 2014. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.