Citation Nr: 21042607 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-21 244 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 30 percent for a cervical spine disability, as of December 29, 2020, is denied. REMANDED Entitlement to a rating in excess of 10 percent for a cervical spine disability, prior to December 29, 2020, is remanded. FINDING OF FACT As of December 29, 2020, a cervical spine disability was manifested by pain and forward flexion of 15 degrees or less, without unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for a cervical spine disability, as of December 29, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to June 2005. In December 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, 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, a 10 percent rating is warranted if forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; or the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is 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 for forward flexion of the cervical spine of 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 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Note 2. Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Entitlement to a rating in excess of 30 percent for a cervical spine disability, from December 29, 2020 A February 2021 rating decision increased the rating for a cervical spine disability from 10 percent to 30 percent, effective December 29, 2020. The Veteran asserts that a service-connected cervical spine disability is worse than contemplated by the 30 percent rating assigned as of December 29, 2020. VA and non-VA medical records show ongoing complaints and treatment for neck pain and limited motion of the neck. A December 8, 2020, VA examination diagnosed degenerative arthritis of the spine. The Veteran reported worsening neck pain, grinding, and numbness of the left upper extremity. The Veteran reported that flare ups occurred three to four times a week and lasted all day. Flare ups caused pain, stiffness, and a "warmth and heavy feeling on the right side of [the] neck." Range of motion testing found forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 55 degrees. The examiner noted that range of motion contributed to functional loss, and pain which caused functional loss was noted on examination. The Veteran was unable to perform repetitive use testing because range of motion testing "aggravated his cervical pain" and there was a positive Spurling Test. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and estimated forward flexion to 35 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; right lateral rotation to 45 degrees; and left lateral rotation to 55 degrees. Pain significantly limited functional ability with flare ups and the examiner estimated forward flexion to 35 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; right lateral rotation to 45 degrees; and left lateral rotation to 55 degrees. There was objective evidence of pain with weight bearing and nonweight-bearing. Passive range of motion the spine was not performed as the examiner stated that it was "not feasible to do this in a safe and reasonable manner." The examiner noted that there was no ankylosis or IVDS of the spine. A December 29, 2020 VA examination diagnosed degenerative arthritis of the cervical spine with left upper extremity radiculopathy and IVDS. The Veteran reported worsening neck pain and stiffness. The Veteran reported that flare ups occurred daily, were severe, and lasted for four to six hours. Flare ups were precipitated by turning head, lifting heavy, and sitting and were alleviated by rest and medication. Range of motion testing showed forward flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 40 degrees. Range of motion contributed to functional loss, and pain which caused functional loss was noted on examination. Repetitive use testing was performed with additional loss of function or range of motion after three repetitions. Forward flexion was measured to 15 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 35 degrees after three repetitions. The examiner noted that pain and lack of endurance significantly limited functional ability with repeated use over a period of time. Pain and lack of endurance significantly limited functional ability with flare ups and the examiner estimated forward flexion to 10 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; right and left lateral rotation to 30 degrees. There was objective evidence of pain with nonweight-bearing and passive range of motion. The examiner noted that there was no ankylosis of the spine. The examiner diagnosed IVDS. However, the examiner noted that the Veteran had not had any episodes of acute signs and symptoms to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner stated that the "functional impairment caused by the established diagnoses of degenerative arthritis of the cervical spine with left upper extremity radiculopathy with IVDS on the [V]eteran's ability to perform physical activities of employment [were] functional limitations of neck pain, stiffness, limited range of motion, difficulty with heavy lifting over 10 pounds. This would limit the [V]eteran's ability to perform occupational and employment duties that require lifting greater than 10 [pounds], full neck ROM, bending or prolonged computer work." On review of all the evidence of record, both lay and medical, the Board finds that a service-connected cervical spine disability has not more nearly approximated a rating in excess of 30 percent as of December 29, 2020. The next higher rating requires unfavorable ankylosis of the entire cervical spine which has not been shown at any point during the period on appeal. The evidence does not show functional impairment that more nearly approximates the criteria to support a higher rating, even considering the Veteran's subjective complaints. The Board notes that even though the Veteran reported the inability to perform repetitive use testing at the December 8, 2020 VA examination, the Veteran was able to perform repetitive use testing on December 29, 2020. The evidence does not show limitation of motion tantamount to ankylosis, even with consideration of other functionally limiting factors. Consideration has been given to assigning separate ratings for neurological abnormalities or chronic neurologic manifestations. However, the record shows that service connection has been established for bilateral upper extremity radiculopathy. No other neurological abnormalities have been demonstrated. The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms such as pain and limited motion of the neck. Layno v. Brown, 6 Vet. App. 465 (1994). However, the clinical findings reported by medical professionals is probative as the Veteran is not shown to have the requisite education, experience, and training to determine the severity level of service-connected cervical spine disability as it applies to the rating schedule. Smith v. Derwinski, 1 Vet. App. 235 (1991). As the evidence does not show that the Veteran has IVDS with incapacitating episodes at any point pertinent to the appeal period, a higher rating is not warranted under the IVDS Rating Formula. In this regard, all VA examinations and treatment records are negative for such a finding, and the Veteran himself has not reported experiencing such incapacitating episode of IVDS as defined by regulation. The Board finds that symptoms of a cervical spine disability are fully contemplated in the 30 percent rating assigned as of December 29, 2020. The preponderance of the evidence shows that the disability picture, even considering pain, flare ups, and functional limitation does not warrant a separate or higher rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for a cervical spine disability, as of December 29, 2020, and the claim for increase as of December 29, 2020, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a cervical spine disability, prior to December 29, 2020, is remanded. A December 2015 VA cervical spine examination report does not include range of motion testing in active and passive motion, and weight-bearing and nonweight-bearing. The examiner did not state that the requested testing was not possible. The Board notes that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. The spine has no opposite joint. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted. Chotta v. Peake, 22 Vet. App. 80 (2008). Therefore, remand for a retrospective medical opinion is necessary. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for a retrospective opinion with regard to the severity of a service-connected cervical spine disability, prior to December 29, 2020. The examiner must review the claims file and should note that review in the report. Th examiner should interview the Veteran regarding symptoms and limitation caused by the cervical spine disability prior to December 29, 2020. The examiner should review the December 2015 VA examination and interview the Veteran in providing the opinions, prior to December 29, 2020. The examiner is asked to determine the severity of a cervical spine disability prior to December 29, 2020. In assessing the cervical spine disability, the examiner should: (a.) Opine as to the range of motion of the cervical spine during active motion, passive motion, weight-bearing, and nonweight-bearing prior to December 29, 2020. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that forward flexion of the cervical spine was limited to less than 30 degrees with consideration of limiting factors such as weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up, prior to December 29, 2020. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that forward flexion of the cervical spine was limited to less than 15 degrees with consideration of limiting factors such as weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up, prior to December 29, 2020. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that there was ankylosis of the cervical spine or whether a cervical spine disability manifested as the equivalent of ankylosis with consideration of limiting factors such as weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up, prior to December 29, 2020. (e.) Discuss the severity, frequency, and duration of any flare ups prior to December 29, 2020, and the precipitating and alleviating factors, and whether those flare ups limited cervical flexion to less than 30 degrees; less than 15 degrees; or caused a limitation tantamount to ankylosis. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.