Citation Nr: 21041756
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 09-33 645
DATE: July 10, 2021

ORDER

Entitlement to a rating in excess of 10 percent for cervical spine strain and/or intervertebral disc syndrome (IVDS) based upon limitation of motion or incapacitating episodes prior to September 21, 2017 is denied. 

For the period on appeal prior to November 14, 2011, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. Prior to September 21, 2017, the Veteran's cervical spine strain and/or IVDS was manifest by, at most, forward flexion limited to 35 degrees. The combined range of motion of the cervical spine was not greater than 170 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; nor was there evidence of IVDS resulting in incapacitating episodes having a total duration of at least two weeks but less than four weeks during any 12 month period. 

2. For the period on appeal prior to November 14, 2011, the Veteran's service-connected disabilities prevented him from securing or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for cervical spine strain and/or IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5237.

2. Resolving reasonable doubt in the Veteran's favor, prior to November 14, 2011, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1989 to May 1991.

In November 2011, the Veteran testified at a Board of Veterans' Appeals (Board) videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 

In a March 2019 decision, the Board, inter alia, denied entitlement to a disability evaluation in excess of 10 percent for cervical spine strain and/or IVDS based upon limitation of motion or incapacitating episodes prior to September 21, 2017 and granted a TDIU from November 14, 2011. The Veteran timely appealed the Board's decision to the Court of Appeals for Veterans Claims (Court).  

In December 2019, the Court granted a joint motion to remand (JMR) wherein the Court vacated the March 2019 Board decision as it related to the issues on appeal, and remanded these matters to the Board for readjudication consistent with the JMR.  

In April 2020, the claims were remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran's claims (as reflected in an April 2021 supplemental statement of the case (SSOC)).

The Board finds that substantial compliance with the prior remand has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claims without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

1. Increased rating for cervical spine strain prior to September 21, 2017

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). 

The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contended that he is entitled to a higher rating for his service-connected cervical spine disability prior to September 21, 2017.

The Veteran's cervical spine strain is evaluated at 10 percent prior to September 21, 2017 under Diagnostic Code (DC) 5299-5237, which evaluates disabilities according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, DC 5235-5243.

Under the General Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or for a combined range of motion greater than 170 degrees but not greater that 335 degrees. It may also be assigned for any muscle spasm, guarding or localized tenderness that does not result in an abnormal gait or abnormal spinal contour, or for a vertebral body fracture with the loss of 50 percent or more of the height. 

A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion is not greater than 170 degrees. It can also be assigned if there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour.

A 30 percent rating is warranted when there is forward flexion of the cervical spine that is 15 degrees or less, or for favorable ankylosis of the entire cervical spine. 

A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 

For VA compensation purposes, unfavorable ankylosis is a condition in which the cervical spine, the 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. 

The General Formula applies for rating purposes with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Formula, Note (1).

For the purposes of rating disabilities of the cervical spine, normal forward flexion, extension, and left and right lateral flexion of the cervical spine are zero to 45 degrees. Left and right lateral rotation are zero to 80 degrees. Thus, the normal combined range of motion for the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, General Formula, Note (2). 

In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion; and, as such, a body part that becomes painful on use must be regarded as seriously disabled. 

Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is considered an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints in question are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but it may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

The Veteran's cervical spine disability can also be rated using the Incapacitating Episodes Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula allows for a rating of 10 percent if there have been incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula. 

For the purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

In the April 2020 remand, the Board noted that the JMR indicated that the Board had erred when it failed to ensure VA's duty to assist was satisfied when it relied on examinations that were inadequate for rating purposes as the previous examinations did not comply with Correia, DeLuca, and Mitchell, infra. 

Pursuant to the Board remand, VA retrospective medical opinion was obtained in March 2021. The examiner estimated that the September 1996 VA examination indicated that pain was presumed at the limits of range of motion. Moreover, he stated that weight bearing and non-weight bearing range of motion are more likely than not equal and concluded the same for passive and active motion. 

Regarding the Veteran's May 2008 VA examination, the May 2021 examiner noted that range of motion testing revealed forward flexion to 35 degrees; extension to 30 degrees; lateral flexion to 35 degrees; and bilateral rotation to 60 degrees each. The examiner noted that flares ups were not documented by the May 2008 VA examiner and repetitive use was also not discussed. However, the May 2021 examiner stated that it was at least as likely as not that the Veteran would have a small loss with both repetitive use and flares ups, if they were present. He estimated that the ranges of motion "would likely be from 0 to 5 [degrees] for all planes of motion."

Regarding the April 2012 VA examination, the May 2021 examiner noted that the initial range of motion testing revealed forward flexion to 40 degrees; extension to 40 degrees; lateral flexion to 40 degrees; left lateral rotation to 65 degrees; and right lateral rotation to 70 degrees. Flares were denied and pain was noted at the limits of the range of motion. The May 2021 examiner stated that these ranges of motion "are generally the same as the [May] 2008 exam, or slightly better." Moreover, he opined that "[a]s no flares are reported, no loss of ROM would be anticipated for repetitive use, a loss of 0 to 5 [degrees] would be anticipated across all planes of motion. This is partly predicated on the fact that the [V]eteran would self-limit upon experiencing pain." 

Regarding the June 2016 VA examination, the May 2021 examiner noted that the there was little change in the range of motion on initial testing and that there was no loss on observed testing. Moreover, the examiner indicated that it would be speculative to suggest a range of motion. Based on the information contained in    the June 2016 VA examination and the medical records and comparing the April 2012 and 2016 examinations,  he opined that it was "at least likely as not that the [V]eteran would lose 0 to 5 [degrees] across all planes with flare [ups] or repetitive use." Moreover, he indicated that "[p]ain is presumed for weight-bearing, non-weight-bearing, passive and active motion when present after 1996, and it is presumed to occur at the limits of motion." 

Upon review of the evidence, the Board finds that prior to September 21, 2017, the criteria for a rating in excess of 10 percent for cervical spine disability is not warranted. 

Prior to September 21, 2017, forward flexion of the Veteran's cervical spine was not limited to 30 degrees or less. In addition, the combined range of motion of his cervical spine was not limited to 170 degrees or less.  Moreover, the May 2008, April 2012, and June 2016 VA examinations do not evidence that his cervical spine area cause any abnormal gait or abnormal spinal contour; there was also no evidence of ankylosis. Notably, the Veteran's pain on motion of his cervical strain did not produce disability comparable to any of the General Formula criteria for a rating higher than 10 percent.  In addition, although the VA examiners noted the Veteran's diagnosed IVDS of the cervical spine, they indicated that he did not have episodes of acute signs and symptoms due to his IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. 

Therefore, there is no basis for a rating higher than 10 percent under the Incapacitating Episodes Formula. The disability picture did not meet or approximate the criteria for a rating higher than 10 percent. As a result, the Board denies a rating higher than 10 percent before September 21, 2017.

2. Entitlement to a TDIU prior to November 14, 2011

In April 2020, the Board remanded the TDIU claim as it was inextricably intertwined with the above increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 

Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2).

As noted in the introduction and in the JMR and April 2020 Board remand, the Board's March 2019 grant of a TDIU from November 14, 2011 did not grant the full benefit sought. Therefore, the Board will address the issue of entitlement to a TDIU prior to November 14, 2011.

Prior to November 14, 2011, the Veteran was service-connected for Crohn's disease, rated as 60 percent from July 21, 2004; cervical spine disability, rated as 20 percent from July 21, 2004; left upper extremity radiculopathy, rated as 20 percent from July 21, 2004; and right upper extremity, rated as 20 percent from July 21, 2004 and 40 percent from August 31, 2011. 

Thus, beginning July 21, 2004, the Veteran had a combined rating higher than 70 percent throughout the appeal period and met the minimum schedular requirements for TDIU on a schedular basis prior to November 14, 2011. 38 C.F.R. § 4.16(a).

The Veteran submitted a VA Form 21-8940 indicating that he last worked in June 2007, and his Crohn's disease, headaches, and neck pain have prevented him from maintaining gainful employment. 

In an July 2007 email, the Veteran's brother-in-law indicated that he had issues with employability because of his stomach problems.

The May 2008 VA examination report noted that the Veteran reported being forced to reduce his hours work from 60 to 20 and that he lost approximately a month of work due to his neck condition in past 12 months.

In an August 2008 letter, the Veteran stated that he has lost his business and can no longer work. He also noted his difficulties with his stomach and neck issues.

 In March 2009, the Social Security Administration determined that the Veteran was not entitled to disability benefits and that he was capable of performing sedentary work with training.

A February 2010 VA examination report indicates that the Veteran's headaches would interfere with his ability to engage in sedentary employment when he suffers from the headaches. 

The April 2012 VA examination report noted that the Veteran's cervical spine disability limited his ability to perform physical but not sedentary employment.

The June 2016 VA examination report noted that the Veteran's physical movements in his neck were limited. Moreover, the examiner stated that the Veteran was unable to perform heavy manual labor with his upper extremities, but could do light duty work that "did not involve much increase neck movements and reaching overhead or that place significant stress on the shoulders due to increase pain from the neck with radiation to bilateral upper extremities." 

The retrospective opinion from the May 2021 VA examiner concluded that prior to November 14, 2011, the Veteran "would likely limit strenuous activities and limit activities requiring overhead work, especially where repetitive flexion and extension and other movements of the neck are required."

Upon review of the evidence of record, the Board finds that a TDIU is warranted for this earlier period. The Veteran reported that he is unable to sustain gainful employment due to his physical limitations, to include due to his cervical spine disability and stomach issues. These statements are competent and credible. 

Furthermore, the record contains VA medical opinions regarding the Veteran's service-connected disabilities impacting his ability to perform work. Although the Veteran could perform sedentary work, he has been primarily employed as a landscaper, which required both physical activity and manual labor.

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Multiple VA medical opinions revealed that prior to November 14, 2011, the Veteran could not perform difficult and strenuous types of labor due to his service-connected cervical spine disability, and that his headaches limited his ability to even perform sedentary tasks. Moreover, the Veteran stated that his service-connected stomach issues also made work very difficult. Based on the medical examinations and opinions, the Veteran's statements, and his occupational history, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Therefore, entitlement to a TDIU prior to November 14, 2011 is warranted. 38 C.F.R. § 4.16(a).

Accordingly, after resolving the benefit of the doubt in favor of the Veteran, the Board concludes that the Veteran's service-connected disabilities have caused him to be unable to secure or follow a substantially gainful occupation since his VA examination on May 29, 2008 first evidenced a significant impairment in his ability to work due to his service-connected disabilities. As such, the Board concludes that a TDIU is warranted for the entire appeal period prior to September 28, 2017, under 38 C.F.R. § 4.16 (a), and the benefit sought on appeal is granted.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kovacs, 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.