Citation Nr: 22010545 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 05-10 819 DATE: February 24, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the cervical spine is denied. FINDING OF FACT The Veteran's service-connected cervical spine disability is not manifested by ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to October 2003. In September 2005, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who has since retired. He was informed of this fact and of his right to another hearing before a VLJ, and such was conducted by the undersigned in March 2008. This matter has a complex procedural history that was thoroughly discussed in the Boards prior July 2021 remand. Such history is incorporated herein by reference. As pertinent to the instant decision, the Veteran's claim for a rating in excess of 20 percent for a cervical spine disability prior to December 21, 2018, and in excess of 30 percent, thereafter, were before the Board in July 2021. At that time, the claims were remanded for further development. In a November 2021 rating decision, the Veteran was granted an increased 30 percent rating, effective October 1, 2003. With that rating increase, the Veteran is now in receipt of a 30 percent initial rating for the entire period on appeal. Accordingly, the sole and remaining issue on appeal is a rating in excess of 30 percent for the entire period on appeal. 1. Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the cervical spine The Veteran's degenerative joint disease of the cervical spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 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. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.] Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended. The regulatory changes did not impact the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a. For the reasons explained below, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent. The pertinent medical evidence for the period on appeal consists of examinations conducted in October 2003, September 2005, July 2007, May 2010, May 2013, August 2016, December 2018, and September 2021, as well as VA treatment records. At the time of the October 2003 examination, the ranges of motion for the Veteran's neck were as follows: flexion to 32 degrees and to 50 degrees after repetitive use; extension 30 degrees and to 34 degrees after repetitive use; left lateral flexion 20 degrees and to 26 degrees after repetitive use; right lateral flexion 30 degrees, and to 32 degrees after repetitive use; left lateral rotation 30 degrees, and to 34 degrees after repetitive use; and right lateral rotation 50 degrees and to 58 degrees after repetitive use. The examiner did not make any clinical findings noting ankylosis. At the time of the September 2005 examination, the ranges of motion for the Veteran's neck were as follows: flexion to 25 degrees; extension to 20 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right lateral rotation to 65 degrees; and left lateral rotation to 65 degrees. The Veteran was noted to have moderate discomfort with extension and right rotation. The examiner did not make any clinical findings noting ankylosis. During a July 2007 examination, the Veteran reported intermittent left-sided neck stiffness, along with some difficulty in turning his head toward the right shoulder, with decreased range of motion, and, at times, muscle spasms on the left side of the neck when he turns his head. The ranges of motion for the Veteran's neck were as follows: 39 degrees of extension, 36 degrees of flexion, 17 degrees of right lateral flexion, 15 degrees of left lateral flexion, 43 degrees of right lateral rotation, and 39 degrees of left lateral rotation. While the Veteran reported that he ended his range of motion due to pain, the examiner noted that there was no evidence of pain on examination. There were no additional limitations to range of motion of the cervical spine after repetitive motion, and there were no additional limitations due to fatigue, weakness, incoordination, or pain. The examiner did not make any clinical findings noting ankylosis. At the time of a May 2010 examination, the ranges of motion for the Veteran's neck were as follows: flexion to 45 degrees; extension to 45 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 50 degrees; and left lateral rotation to 30 degrees. The examiner did not make any clinical findings noting ankylosis. During a May 2013 examination, the Veteran reported a limited range of motion and daily constant pain with a 5/10 severity. The ranges of motion for the Veteran's neck were as follows: flexion to 42 degrees; extension to 42 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right lateral rotation to 60 degrees; and left lateral rotation to 60 degrees. There were no additional limitations to range of motion of the cervical spine after repetitive motion. The examiner did not make any clinical findings noting ankylosis. At the time of an August 2016 examination, the ranges of motion for the Veteran's neck were as follows: flexion to 40 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 60 degrees; and left lateral rotation to 60 degrees, with pain on all motion. There were no additional limitations to range of motion of the cervical spine after repetitive motion. On repeated use over time the ranges of motion for the Veteran's neck were as follows: flexion to 30 degrees; extension to 20 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. With flare-up, ranges of motion for the Veteran's neck were as follows: flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner did not make any clinical findings noting ankylosis. During a December 2018 examination, the Veteran reported that he couldn't turn his neck much to the right or left, having to frequently move around, and difficulty working at a computer or driving. The ranges of motion for the Veteran's neck were as follows: flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 40 degrees; and left lateral rotation to 45 degrees, with pain on all motion. There were no additional limitations to range of motion of the cervical spine after repetitive motion or with repeated use over time. With flare-ups, ranges of motion for the Veteran's neck were as follows: flexion to 15 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The examiner did not make any clinical findings noting ankylosis. At the time of a September 2021 examination, the Veteran reported a limited range of motion and daily constant pain with an 8/10 severity that caused impairment with driving. The ranges of motion for the Veteran's neck were as follows: flexion to 10 degrees; extension to 25 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 30 degrees, with pain on all motion. Passive range of motion testing was not conducted due to pain. There were no additional limitations to range of motion of the cervical spine after repetitive motion. With flare-ups, ranges of motion for the Veteran's neck were as follows: flexion to 10 degrees; extension to 25 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 30 degrees. Notably, the Veteran denied flare-ups. The examiner did not make any clinical findings noting ankylosis. An addendum medical opinion was also obtained in November 2021, to assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss from October 2003 to the present. The examiner noted consideration of the previous cervical spine examinations from October 2003 to the most recent examination findings of September 2021. The ranges of motion for the Veteran's neck with repeated user over time were as follows: flexion to 10 degrees; extension to 20 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. Ranges of motion for the Veteran's neck with flare-ups were the same, with the exception of left lateral rotation to 25 degrees. The examiner did not make any clinical findings noting ankylosis. The Veteran's VA treatment records show consistent complaints and treatment for pain related to the cervical spine, as well as findings related to a loss of range of motion; however, there is no evidence of incapacitating episodes or evidence of ankylosis. The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for degenerative joint disease of the cervical spine. As noted above, while the evidence shows a diminished range of motion of the spine, even with pain and after repetitive use, there is no medical evidence of record showing clinical ankylosis. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to painful motion, pain during flare-ups, and pain during repetitive use over time, however, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the Veteran has been noted to have IVDS during the period on appeal, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. To that extent, no VA examination of record notes incapacitating episodes of IVDS. For the reasons stated above, a rating in excess of 30 percent is not warranted for the Veteran's cervical spine disability. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.