Citation Nr: 21042305 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-05 827A DATE: July 12, 2021 ORDER Entitlement to a rating in excess of 40 percent disabling for degenerative disc disease of the lumbar spine is denied. Entitlement to a rating in excess of 30 percent for degenerative disc disease of the cervical spine is denied. FINDINGS OF FACT 1. At no time during the period on appeal has the Veteran's degenerative disc disease of the lumbar spine resulted in ankylosis of the thoracolumbar spine, nor is there a finding of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. 2. At no time during the period on appeal has the Veteran's degenerative disc disease of the cervical spine resulted in unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent disabling for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5237. 2. The criteria for entitlement to a rating in excess of 30 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1978. In October 2019, the Board remanded the issues for VA examinations to assess the current severity of the Veteran's lumbar spine and cervical spine disabilities. The issues have been returned to the Board for appellate review. The Board notes that in March 2021, the Veteran and his representative submitted correspondence stating a desire to withdraw all pending appeals. Attached was a signed statement that the Veteran wished to withdraw his current appeal, however next to the signature the Veteran wrote "I sign this under duress." In an April 2021 correspondence, the Veteran's representative submitted another statement that the Veteran had one remaining appeal and he wished to withdraw the remaining appeal for evaluation of degenerative disc disease, lumbar spine with spinal stenosis and osteoarthritis. As the Veteran had two appeals before the Board and the Veteran stated he signed the withdrawal "under duress", a letter dated May 25, 2021 was sent to the Veteran asking for clarification of his intent to withdraw his appeals. The notice informed the Veteran his case would be put in suspense for 30 days pending his response and in the absence of a formal withdrawal, appellate review would resume. The Veteran did not respond; therefore, the pending appeals have been adjudicated. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 40 percent disabling for degenerative disc disease of the lumbar spine The Veteran contends that his service-connected lumbar spine disability warrants a rating in excess of the 40 percent rating currently assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Specifically, the Veteran has reported that his pain is constant, and his range of motion has decreased. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. As relevant to the Veteran's lumbar spine disability, the rating criteria in effect prior to February 7, 2021 provided that DC 5242 contemplated degenerative arthritis of the spine and indicated that DC 5003 should also be considered. On and after February 7, 2021, the amendments changed DC 5242 to include degenerative disc disease (other than intervertebral disc syndrome or IVDS) with arthritis and indicated that either DC 5003 or DC 5010 should also be considered. In terms of IVDS, prior to February 7, 2021, the rating criteria indicated that DC 5243 contemplated IVDS. Effective from February 7, 2021, the rating criteria still list IVDS under DC 5243, but also instruct that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, DC 5242 should be assigned. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019). The provisions of 38 C.F.R. §§ 4.40 and 38 C.F.R. §§ 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the former rating criteria for DC 5242, the General rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As of February 7, 2021, DC 5242 assigns a 40 percent disability rating where there is evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Additionally, the current rating criteria permits assignment of a disability rating under either DC 5003 or DC 5010. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for ankylosis of the entire spine. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Board notes that in this case, any changes to DC 5242 do not result in a change in the analysis for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. On VA examination in June 2014, the examiner noted a diagnosis of degenerative disc disease, lumbar spine with spinal stenosis and osteoarthritis, with bilateral lower extremity radiculopathy. The Veteran denied flare-ups. The Veteran had forward flexion to 80 degrees with objective evidence of pain at 80 degrees, extension to 20 degrees with objective evidence of pain at 20 degrees, left and right lateral flexion to 20 degrees with objective evidence of pain at 20 degrees, and left and right lateral rotation to 20 degrees with objective evidence of pain at 20 degrees. Total range of motion was 180 degrees. The Veteran was unable to perform repetitive use testing due to severe back pain. Functional loss was described as less movement than normal, weakened movement, and pain on movement. Although the Veteran denied flare-ups, the examiner noted that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. There was no localized tenderness or pain to palpation. The Veteran did have guarding or muscle spasm, but they do not result in abnormal gait or spinal contour. Muscle strength was 3/5 with no muscle atrophy. There was no evidence of lumbar spine ankylosis or IVDS and incapacitating episodes. The Veteran reported using a brace on a constant basis for his back condition. The Veteran's lumbar spine disability limited lifting to 45 pounds, walking 1 block at a time, walking 1-2 blocks during an 8 hour day, sitting for 30 minutes, and standing for 5 minutes, and sitting for 2 hours and standing for 15 minutes during an 8 hour day. A May 2017 VA lumbar examination reflects the Veteran reported flare-ups that he described as severe thoracic pain and numbness in lower legs to the point where he cannot get out of bed. Functional loss was described by the Veteran as inability to walk long distances without utilizing assistive devices, inability to sit for prolonged periods of time, and constant severe pain that limits his range of motion. All ranges of motion were normal with forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The Veteran was able to perform repetitive use testing with additional loss of range of motion as follows: forward flexion to 25 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, and right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. Pain, fatigue, weakness, and lack of endurance were factors that caused the functional loss. The examiner stated pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repeated use over a period of time with the estimated ranges of motion as follows: forward flexion to 20 degrees, extension to 2 degrees, left and right lateral flexion to 2 degrees, and right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The examiner estimated the same ranges of motion during a flare-up due to pain, fatigue, weakness, and lack of endurance. The Veteran had localized tenderness resulting in abnormal gait or abnormal spine contour. There was no muscle spasm or guarding. Additional factors contributing to disability were noted as swelling, interference with sitting, and interference with standing. There was no muscle atrophy, ankylosis, or IVDS of the spine. The Veteran reported he wears braces on a constant basis and uses walking forearm crutches when he is not at home. Functional impact was described as limits on the Veteran's ability to walk, sit, or stand. There was objective evidence of pain on passive and non-weight bearing testing of the back. A December 2019 VA lumbar spine examination shows the Veteran reported he was unable to walk, stand, sit, bend, or lift heavy objects for long periods of time. His back disability is treated with muscle relaxers and pain medication. The Veteran denied flare-ups. Functional loss was described as the limitations above and an inability to do most of his daily activities. He reported he had a home health aid twice a week. The Veteran had forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. Pain was noted on examination that caused functional loss and there was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with forward flexion to 25 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. Pain, fatigue, weakness, and lack of endurance caused functional loss on repetitive-use testing. The examiner noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time with an estimated of range of motion as follows: forward flexion to 20 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. The Veteran did not have muscle spasm, but guarding was noted to result in abnormal gait or abnormal spine contour. There was no muscle atrophy or ankylosis. The Veteran reported constant use of a brace for multiple sclerosis and regular use of crutches for multiple sclerosis and spinal stenosis. Functional impact was noted as inability to walk, stand, sit, bend, or lift heavy objects without significant pain. The examiner stated that passive ROM of the spine was not performed as it is not feasible to do so in a safe and reasonable manner. Additionally, the examiner stated non-weight bearing assessment is not applicable as there is no objective evidence of pain when the spine is in a non-weight bearing position at rest. An August 2020 VA back conditions examination reflects that the Veteran reported his current symptoms as pain, numbness, and tingling. He stated that he is unable to finish remodeling his home due to the pain and flare-ups he experiences almost on a daily basis. Flare-ups were described as sharp, severe pain lasting 5 hours 10-20 times per week. Functional loss or impairment was described by the Veteran as an inability to walk, stand, sit, bend, and lift heavy objects for long periods of time. The Veteran had forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted on examination and evidenced with weight bearing. There was objective evidence of moderate pain in the low back that was unrelated to the claimed condition. The Veteran was able to perform repetitive-use testing with forward flexion to 25 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. Pain, fatigue, weakness, and lack of endurance caused the additional loss of ROM. The examiner noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time with an estimated of range of motion as follows: forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-up with an estimated range of motion as follows: forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran had muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. There was no muscle atrophy, ankylosis, or IVDS of the thoracolumbar spine. Functional impact was noted as inability to walk, stand, sit, bend, or lift heavy objects for longer periods of time. The examiner stated that passive ROM of the spine was not performed as it is not feasible to do so in a safe and reasonable manner. There was objective evidence of pain in non-weight bearing. Treatment records associated with the claims file reflect ongoing complaints of neck pain and treatment that includes prescription pain medications. Based on the evidence above, a rating in excess of 40 percent is not warranted. None of the aforementioned evidence indicates that the Veteran has ankylosis of the lumbar spine; on the contrary, the evidence shows the Veteran has maintained range of motion in his spine, albeit limited, throughout the appeal period. Additionally, there is no evidence that the Veteran's spine disability results in the functional equivalent of ankylosis during flare-ups such that he is unable to move. Chavis v. McDonough, U.S. Vet. App. No. 18-2928 (April 16, 2021). To the contrary, even during flare-ups the Veteran's range of motion is not so restricted that he is unable to move. As such, there is no functional loss severe enough to implicate Chavis, and a rating in excess of 40 percent under the General Rating Formula is not warranted. Additionally, an increased rating is not warranted due to pain, weakness, fatigability, or incoordination with flare-ups as even with flare-ups the Veteran's range of motion is reduced, but not eliminated. Additionally, based on the medical evidence of record, consideration of a higher rating under DC 5243, which to pertains to IVDS is also not warranted as no examiner found evidence of IVDS or incapacitating episodes. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 40 percent. The claim for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine must be denied. 2. Entitlement to a rating in excess of 30 percent for degenerative disc disease of the cervical spine The Veteran contends that his service-connected cervical spine disability warrants a rating in excess of the 30 percent rating currently assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Specifically, the Veteran has reported that his range of motion has decreased. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. As relevant to the Veteran's cervical spine disability, the rating criteria in effect prior to February 7, 2021 provided that DC 5242 contemplated degenerative arthritis of the spine and indicated that DC 5003 should also be considered. On and after February 7, 2021, the amendments changed DC 5242 to include degenerative disc disease (other than intervertebral disc syndrome or IVDS) with arthritis and indicated that either DC 5003 or DC 5010 should also be considered. In terms of IVDS, prior to February 7, 2021, the rating criteria indicated that DC 5243 contemplated IVDS. Effective from February 7, 2021, the rating criteria still list IVDS under DC 5243, but also instruct that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, DC 5242 should be assigned. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019). The provisions of 38 C.F.R. §§ 4.40 and 38 C.F.R. §§ 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the former rating criteria for DC 5242, the General rating Formula for Diseases and Injuries of the Spine, the diagnostic code criteria pertinent to cervical spine disabilities provides that a 30 percent rating is warranted where there is forward flexion of the cervical spine 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. 38 C.F.R. § 4.71a. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). The Board notes that in this case, any changes to DC 5242 do not result in a change in the analysis for a rating in excess of 30 percent for degenerative disc disease of the cervical spine. At a July 2014 VA cervical spine examination, the examiner noted a diagnosis of degenerative disc disease, cervical spine with spinal stenosis and osteoarthrosis. The Veteran reported a history of intermittent neck pain associated with neck movement. The Veteran denied flare-ups. Range of motion testing showed flexion to 35 degrees, extension to 35 degrees, right and left lateral flexion to 35 degrees, and right and left lateral rotation to 70 degrees. The Veteran was able to perform repetitive-use testing with no additional loss in range of motion. Functional loss was described as less movement than normal and pain on movement. Although the Veteran denied flare-ups, the examiner stated pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over time. There was no localized tenderness or pain on palpation, guarding, or muscle spasm. Muscle strength testing was normal, and the Veteran did not have any muscle atrophy, ankylosis, or intervertebral disc syndrome (IVDS) of the spine. Sensory examination was normal. The Veteran's cervical spine disability limited lifting to 45 pounds, walking 1 block at a time, walking 1-2 blocks during an 8 hour day, sitting for 30 minutes, and standing for 5 minutes, and sitting for 2 hours and standing for 15 minutes during an 8 hour day. A December 2019 VA cervical spine examination shows diagnoses of degenerative arthritis of the spine and degenerative disc disease, cervical spine with spinal stenosis and osteoarthrosis. The Veteran reported he was unable to bear weight on his neck, unable to turn his head fully without causing significant pain, and numbness and pain in his bilateral upper extremities. His neck disability is treated with muscle relaxers and pain medication. The Veteran denied flare-ups. Functional loss was described by the Veteran as an inability to turn his head to the left and has to turn his body in order to see left. Range of motion testing showed flexion to 35 degrees, extension to 5 degrees, right and left lateral flexion to 35 degrees, and right and left lateral rotation to 25 degrees. Pain was noted on extension and left lateral flexion that did not result in or cause functional loss. There was evidence of pain on weight bearing and significant tenderness to palpation described as moderate severity by the examiner. The Veteran was unable to perform repetitive-use testing due to fear of pain. The examiner noted that pain, weakness, fatigue, and lack of endurance significantly limit functional ability with repeated use over a period of time with an estimate of range of motion as follows: forward flexion to 25 degrees, extension to 0 degrees, left and right lateral flexion to 25 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The Veteran did not have muscle spasm but did have guarding resulting in abnormal gait or abnormal spine contour. There was no muscle atrophy, ankylosis, or IVDS of the cervical spine. The Veteran reported regular use of a brace for multiple sclerosis and regular use of crutches for multiple sclerosis and spinal stenosis. Functional impact of the Veteran's cervical spine condition makes him unable to bear weight on his neck and unable to turn his head fully without causing significant pain. The examiner stated that passive ROM of the spine was not performed as it is not feasible to do so in a safe and reasonable manner. Additionally, the examiner stated non-weight bearing assessment is not applicable as there is no objective evidence of pain when the spine is in a non-weight bearing position at rest. Treatment records associated with the claims file reflect ongoing complaints of neck pain and treatment that includes prescription pain medications. After reviewing all the evidence in light of the above criteria, the Board finds that a rating in excess of 30 percent for degenerative disc disease of the cervical spine is not warranted at any time during the period on appeal. During the appeal period, the Veteran has not been diagnosed with unfavorable ankylosis of the entire cervical spine or with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, the Veteran's symptoms are currently contemplated by the assigned 30 percent rating and a higher rating is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242, 5243. (Continued on the next page) Moreover, additional compensation based on functional loss due to pain and other factors is not warranted. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's current 30 percent evaluation is based on compensation for functional loss due to painful movement, and the evidence does not show that there is additional functional loss that is not compensated already in the currently assigned 30 percent evaluation. In determining the Veteran's overall functioning, the Board has considered the DeLuca factors noted above, the Veteran's reported symptoms, the clinical records, and the VA examination reports. In light of the above medical and lay evidence, even when considering the Veteran's complaints of pain, and other functional loss factors discussed above, throughout the appeal period, the evidence does not show that there is functional loss more nearly approximating unfavorable ankylosis of the entire cervical spine or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Although range of motion is limited, there has been no limitation of ROM or IVDS in the range required for a higher 40 percent rating under Diagnostic Codes 5003, 5242, or 5243. In making this determination, the Board has consistently considered the impact of functional loss upon the Veteran's range of motion of the cervical spine. Specifically, even when considering the impact of pain and flare-up conditions, the Veteran's pain has not been shown by competent credible evidence to cause a limitation of motion or other functional loss which would warrant a rating in excess of the current 30 percent. Thus, when the ranges of motion in the neck are considered together with the evidence showing functional loss, to include the lack of evidence of muscle atrophy or ankylosis, the Board finds that there is insufficient evidence of objective pain on motion to such extent, or any other functional loss, to warrant a rating in excess of 30 percent. Therefore, a rating higher than 30 percent is not warranted based on the evidence of record. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.