Citation Nr: 22010280 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 12-28 814 DATE: February 23, 2022 ISSUES 1. Entitlement to a schedular evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. 2. Entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine on an extraschedular basis. ORDER Entitlement to a schedular evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine on an extraschedular basis is remanded. FINDING OF FACT Throughout the entire appeal period the Veteran's intervertebral disc syndrome with degenerative arthritis of the cervical spine did not result in forward flexion limited to 15 degrees either upon clinical evaluation or as determined to occur with repeated use over time, nor did it result in ankylosis or the functional equivalence of ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 1984 to June 1984 and from November 2005 to May 13, 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In July 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This matter was previously before the Board in September 2017, March 2019 and December 2021. In the September 2017 decision, the Board, in relevant part, denied the Veteran's claim of entitlement to a disability evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2018, CAVC granted an Amended Joint Motion for Partial Remand (JMPR), vacating the Board's September 2017 decision which found that the Veteran was not entitled to an increased disability rating evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. See CAVC Order June 1, 2018. The JMPR found that the Board's September 2017 decision did not contain a sufficient statement of reasons or bases for reaching its determination regarding functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance. In its March 2019 decision, the Board remanded the Veteran's claim for further development, to include a VA examination to evaluate the current severity of the Veteran's cervical spine disability. In December 2021, the matter was remanded to the RO to issue a Supplemental Statement of the Case (SSOC) following the addition of pertinent evidence of record (VA examinations) added to the claims file following the issuance of a February 2021 SSOC. Following the Board's remand, a December 2021 SSOC was issued addressing this evidence in the first instance. The December 2021 SSOC continued the denial of the Veteran's claim entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. The matter has returned to the Board for appellate consideration. Entitlement to a schedular evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. The Veteran contends that she is entitled to a rating in excess of 20 percent for her for intervertebral disc syndrome with degenerative arthritis of the cervical spine. See also, August 20, 2010, Notice of Disagreement (NOD). The Veteran is rated under Diagnostic Code 5243 for her intervertebral disc syndrome with degenerative arthritis of the cervical spine. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Note (5): Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more 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. 38 C.F.R. § 4.71a, DC 5235-5243. Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for 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 evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Amendments Revisions to Musculoskeletal ratings, effective February 7, 2021, refer the rater to assign Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Discussion During the course of this appeal, the Veteran has been afforded examinations in October 2009, January 2017, November 2019, February 2021 and May 2021 to determine the severity of her cervical spine disability. Examinations In the October 2009 Spine examination, the examiner rendered a diagnosis of degenerative disc disease at the C4-C5, C5-6 and C6-7 levels. See October 2, 2009 Spine examination, pg. 7. On medical history, the examiner reported that the Veteran has walking limits due to her lumbar spine and the gradual onset of cervical spine pain from military service. Id. at 2. Physical examination revealed forward flexion to 45 degrees; extension to 45 degrees. There was no additional limitation after repetitive motion. Id. at 3. The Veteran did not have guarding or muscle spasm. There was no evidence of muscle atrophy. Id. at pgs. 3-4. In her January 2017 Neck Conditions examination, the VA examiner rendered a diagnosis of spondylotic changes cervical spine with left upper extremity radiculopathy. See January 28, 2017, Back Conditions examination, pg. 1. With regards to flare-ups, the examiner reported that the Veteran denied flare ups. Id. at 2. Addressing Functional loss: The VA examiner reported that the Veteran has increased left arm pain when working on the computer. Id. Physical examination revealed forward flexion to 30 degrees; extension to 40 degrees. The examiner reported that the Veteran's range of motion did not contribute to a functional loss. Id. at 2. Repetitive Use testing: The examiner reported that the Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion lost. Id. at 3. The examiner reported that pain, fatigue, weakness and lack of endurance or incoordination did not significantly limit functional ability with repeated use over time. Id. at 3. The examiner found no evidence of guarding or muscle spasms. There was no evidence of muscle atrophy or ankylosis. Id. at 4-5. The examiner reported that the Veteran does have IVDS of the cervical spine and that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use an assistive device for ambulation. Id. at 5-6. Addressing functional impact on work: the examiner reported that the Veteran's limited sit tolerance is approximately 30 minutes at the computer, and then she has to change positions. Id. at 7. In her November 2019 Back Conditions examination, the VA examiner rendered a diagnosis of degenerative arthritis of the lumbar spine with foraminal stenosis. See November 10, 2019 Back Conditions examination, pg. 1. With regards to flare-ups, the examiner reported that the Veteran denied flare ups. Id. at 2. Addressing Functional loss: The VA examiner noted the Veteran does not report having any functional impairment of the back regardless of repetitive use. Id. at 2. Physical examination revealed forward flexion to 90 degrees; extension to 5 degrees. The examiner reported that the Veteran's range of motion did not contribute to a functional loss. Id. at 2. Addressing repeated use, the examiner reported that the Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion lost. Id. at 3. The examiner reported that pain, fatigue, weakness and lack of endurance or incoordination did not significantly limit functional ability with repeated use over time. Id. at 3. The examiner found no evidence of guarding or muscle spasms. There was no evidence of muscle atrophy or ankylosis. Id. at 3-5. The examiner reported that the Veteran does not have IVDS of the thoracolumbar spine. Id. at 5. The examiner reported that the Veteran did use a cane for ambulation. Id. at 5. Addressing functional impact on work: the examiner reported that the Veteran has limited stand and walk tolerance. Id. at 7. In her February 2021 Neck Conditions examination, the examiner rendered a diagnosis of intervertebral disc syndrome with degenerative arthritis of the cervical spine. The Veteran reported nek pain that radiates upward to head then to her forehead and causes headaches. See February 24, 2021 Neck Conditions examination, pgs. 2-3. With regards to flare-ups, the examiner reported that the Veteran denied flare ups. Id. at 3 & 6. Addressing Functional loss: The VA examiner reported that the Veteran has difficulty driving due to neck pain. Id. at 4. Physical examination revealed forward flexion to 35 degrees; extension to 35 degrees. The examiner reported that the Veteran's range of motion contributes to a functional loss. Pain was noted on the examination which causes functional loss. The Veteran reported difficulty driving due to neck stiffness. Id. Addressing repeated use, the examiner reported that the Veteran was able to perform repetitive use testing with at least three repetitions. There was additional loss of range of motion lost after three repetitions: Physical examination revealed forward flexion to 30 degrees; extension to 30. Id at pg. 5. The examiner reported that pain, fatigue, weakness and lack of endurance are factors that significantly limit functional ability with at least three repetitions. Id. at 5. Addressing repeated use over a period of time, the examiner reported that the pain, fatigue, weakness and lack of endurance are factors that significantly limit functional ability with repeated use over time. Id. at 5. Described in terms of range of motion: forward flexion was limited to 30 degrees; extension to 30. The examiner reported that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Id. at pgs. 5-6. The examiner found no muscle spasms. There was evidence of guarding resulting in an abnormal gait. Id. at 7. There was no evidence of muscle atrophy or ankylosis. Id. at 7-10. The examiner reported that the Veteran does have IVDS of the cervical spine and that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use an assistive device for ambulation. Id. at 11-12. Addressing functional impact on work: the examiner reported that the Veteran reports neck pain and radiating pain in arms when typing. She also reports neck pain and stiffness which makes it difficult to drive. Id. at 13-14. In her May 2021 Neck Conditions examination, the VA examiner rendered a diagnosis of degenerative arthritis and muscle spasms and intervertebral disc syndrome with degenerative arthritis of the cervical spine. See May 3, 2021 Neck Conditions examination, pg. 3 With regards to flare-ups, the examiner reported that the Veteran denied flare ups. Id. Addressing Functional loss: The VA examiner reported that the Veteran has difficulty driving and looking over her shoulder due to neck pain. The Veteran also reported sleep disturbance at night due to neck pain. Id. at 4. Physical examination revealed forward flexion to 35 degrees; extension to 35 degrees. Passive range of motion was performed and there was no change in range of motion. Id. at 5. There was evidence of pain on active and passive motion, causing decreased range of motion due to real or anticipated pain. Pain was 5 out of 10. Id. at 6. Addressing repeated use, the examiner reported that the Veteran was able to perform repetitive use testing with at least three repetitions. There was additional loss of range of motion lost after three repetitions: Physical examination revealed forward flexion to 30 degrees; extension to 30 degrees. Id. at pgs. 6-7. The examiner reported that pain, fatigue, weakness and lack of endurance are factors that significantly limit functional ability with at least three repetitions. Id. at 7. Addressing repeated use over a period of time, the examiner reported that the pain, fatigue, weakness and lack of endurance are factors that significantly limit functional ability with repeated use over time. Id. Described in terms of range of motion: forward flexion was limited to 25 degrees; extension to 25. The examiner reported that the estimated range of motion was based on a review of all procurable information, including the Veteran's own statements on examination. Id. at 7. The examiner reported that due to real pain observed on exam and the amount Veteran has to drive to come to work at least 2 hours driving per day, frequent looking over shoulder for driving, and then 8 hr. workday at a computer causes repetitive range of motion, causing pain, reduced endurance, weakness, and fatigue. Id. at 7. The examiner reported that the Veteran denied flare-ups. Id. at 8. The examiner found muscle spasms, not resulting in abnormal gait or abnormal spinal contour. The examiner reported daily muscle spasms and neck shoulder tightness lasting for most of the day, unrelieved with stretching. The examiner reported that there was no evidence of guarding. Id. There was no evidence of muscle atrophy or ankylosis. Id. at 11-13. The examiner reported that the Veteran does have IVDS of the cervical spine and that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use an assistive device for ambulation. Id. at 14. Addressing functional impact on work: The examiner reported that the Veteran's intervertebral disc syndrome with degenerative arthritis of the cervical spine causes the Veteran to miss 1day per week from work due to the difficulty with her commute towards the end of the week due to neck pain. The examiner reported that the Veteran has decreased concentration and frequent repositioning due to muscle spasms causing interruption with work tasks and speed. Sleep disturbance contributes to irritability impacting work relationships and focus at work. Id. at 18. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Based on the foregoing, the Board finds that a rating in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine is not warranted. At the outset, the Board finds that the VA examinations of record, taken in conjunction with records of medical treatment and the Veteran's own statements of functional loss due to pain during the course of this appeal, provide an adequate basis upon which to determine the extent and severity of the Veteran's intervertebral disc syndrome with degenerative arthritis of the cervical spine. The Board notes that at no point during the appeal period was forward flexion limited to 15 degrees or less, either upon clinical evaluation or as determined to occur with repeated use over time or during flare-ups (which the Veteran consistently denied). See October 2, 2009 Spine examination, pg., 2; See January 28, 2017, Back Conditions examination, pgs. 2-3; See November 10, 2019 Back Conditions examination, pgs. 2-3; See February 24, 2021 Neck Conditions examination, pg. 6; See also, May 3, 2021 Neck Conditions examination, pgs. 7-8, re: range of motion measurements with repeated use and the Veteran denies flare ups. The Board is reminded, under the General Rating formula, a 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The Board observes that at worst, the Veteran's forward flexion was limited to 25 degrees with repeated use over time as depicted in the Veteran May 3, 2021 Neck Conditions examination. Functional Loss The Board is cognizant that when specifically addressing the Veteran's functional loss as due to pain, the January 2017 VA examiner reported that pain, fatigue, weakness and lack of endurance or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. See January 28, 2017 Neck Conditions examination, pg. 3. The November 2019 VA Back Conditions examiner also reported that fatigue, weakness and lack of endurance or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. See November 10, 2017 VA Back Conditions examination pg. 3. The Board observes however that both the February 2021examination and May 2021 Neck Condition examiners did report that the Veteran experienced functional loss as a result of pain, fatigue, weakness and lack of endurance. Both of these examiners were able to describe additional functional loss, measured in terms of range of motion, consistent with the Veteran's own statements describing functional loss or based on all procurable data (including the Veteran's own statements) describing functional loss. In other words, the Board finds that these examination reports considered the DeLuca factors in assessing this Veteran's functional loss resulting from pain, fatigue, weakness and lack of endurance. The Board also notes that the Veteran denied flare-ups in each of her examinations. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) Even with consideration of the Veteran's pain with weakness, fatigue, and lack of endurance, together with the Veteran's descriptions of walking limits and difficulty driving due to neck pain during the course of this appeal, the Board finds that the probative and persuasive evidence of record (VA examinations which described additional functional loss, measured in terms of range of motion lost, based on all procurable data, including the Veteran's own statements) does not support a finding that the Veteran's cervical neck disability more closely approximates the criteria for a 30 percent rating. The Board is reminded, under the General Rating formula, a 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Further, each VA examiner reported that the Veteran did not have ankylosis. Upon consideration of the Veteran's additional functional loss with pain, weakness fatigue and lack of endurance, measured in terms of additional range of motion lost (25 degrees with flexion with repeated use over time), the Board also does not find that the symptomology of this Veteran's cervical spine disability manifests the functional equivalent of ankylosis. As far a higher rating under diagnostic code 5243 for IVDS, the Board notes that while the Veteran's examinations revealed the presence of IVDS, no examination reported incapacitating episodes of IVDS of at least six weeks' duration in the past 12-month period. As such, a disability rating higher than the currently assigned 20 percent rating is not warranted under the IVDS Formula. With respect to neurological symptoms, the record includes the Veteran's statements and medical evidence regarding cervical neck pain that radiates to the upper extremities. However, the Veteran has already been awarded separate ratings for cervical radiculopathy of the left upper extremities, right upper extremity long thoracic nerve impairment and left upper extremity long thoracis nerve impairment. The evidence of record does not suggest that the Veteran has any other neurological abnormality associated with her cervical spine disability. Further, there is no other evidence of objective neurological abnormalities upon examination that have not already been contemplated by the Veteran's current radiculopathy, right upper extremity and left upper extremity long thoracic nerve impairment ratings. In summary, the Board finds that throughout the appeal period, the Veteran's intervertebral disc syndrome with degenerative arthritis of the cervical spine did not result in forward flexion limited to 15 degrees either upon clinical evaluation or as determined to occur with repeated use over time, nor did it result in ankylosis or the functional equivalence of ankylosis. As such, the criteria for a rating in excess of 20 percent have not been met. The Board finds that the evidence is persuasively against the claim for an increased rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim for entitlement to an evaluation in excess of 20 percent for the Veteran's s intervertebral disc syndrome with degenerative arthritis of the cervical spine is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine on an extraschedular basis is remanded. As noted above in her February 2021 Neck Conditions examination, the Veteran reported she has neck pain that radiates upward to her head then to her forehead which causes headaches. See February 24, 2021 Neck Conditions examination, pgs. 2-3. In her May 2021 Neck Conditions examination, the Veteran described having decreased concentration due to muscle spasms and frequent repositioning during her workday. The Veteran also described difficulty sleeping due to constant neck pain contributing to irritability impacting work relationships. Additionally, the Veteran described missing 1 day per week at work due to difficulty with the commute towards the end of the week resulting from neck pain. See May 3, 2021 Neck Conditions examination, pgs. 4 & 8. Neither sleep impairment, headaches, nor decreased concentration are specifically contemplated under the General Rating Formula for Disabilities of the Spine. On remand, the AOJ should consider whether a higher rating may be in order for such manifestations, either as secondary to the cervical spine disability or on an extraschedular basis. Accordingly, this matter is REMANDED for the following action: 1. Obtain all outstanding treatment medical records, private and VA, and associate them with the claims file. 2. Thereafter, conduct any further development deemed necessary, to potentially include the provision of an additional VA examination, to determine whether a higher extraschedular rating and/or additional separate evaluations are warranted for the Veteran's headaches, decreased concentration due to muscle spasms and sleep disturbances associated with her service-connected cervical spine disability. Then refer the service-connected cervical spine disability to the VA's Director of Compensation Service for extraschedular consideration. (Continued on next page) 3. If the claim is not granted to the Veteran's satisfaction, the AOJ should issue a Supplemental Statement of the Case and afford the Veteran and his representative an opportunity to respond before returning the appeal to the Board for further appellate review, if in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.