Citation Nr: 22012255 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-30 355 DATE: March 3, 2022 ORDER An initial rating in excess of 20 percent for cervical spine disability status post cervical fusion with degenerative disc/joint disease of the cervical spine (claimed as neck condition) prior to October 5, 2021, and in excess of 30 percent, thereafter, is denied. FINDING OF FACT 1. The evidence is persuasively against a finding that prior to October 5, 2021, the Veteran's cervical spine disability cervical spine disability status post cervical fusion with degenerative disc/joint disease of the cervical spine (claimed as neck condition) manifested by forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. 2. The evidence is persuasively against a finding that at no point after October 5, 2021, has the Veteran's cervical spine disability status post cervical fusion with degenerative disc/joint disease of the cervical spine (claimed as neck condition) manifested by unfavorable ankylosis of the entire cervical spine, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for chronic lumbar strain prior to October 5, 2021, and in excess of 30 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7 4.14, 4.20, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5241. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1973 to March 1976, November 1990 to July 1991, August 2002 to July 2003, and July 2007 to August 2008. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision from the Veterans Affairs (VA) Regional Office (RO) in December 2014 that granted service connection for a cervical spine disability and assessed a rating disability of 20 percent from August 3,2008. In an October 2021 decision, the RO increased the rating to 30 percent effective October 5, 2021. Since the increased rating constitutes only a partial grant of the benefits sought on appeal, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board remanded the claim in May 2021. Substantial compliance with the remand request having been achieved, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran testified at a May 2021 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been filed in the record. Increased Ratings 1. Evaluation of a disability rating in excess of 20 percent for cervical spine disability status post cervical fusion with degenerative disc/joint disease of the cervical spine (claimed as neck condition) prior to October 5, 2021, and in excess of 30 percent, thereafter, is denied. Service connection for the Veteran's cervical spine disability status post cervical fusion with degenerative disc/joint disease of the cervical spine (claimed as neck condition) was granted at 20 percent disabling under 38 C.F.R. § 4.71a, DC 5241-5242, effective August 2, 2008. The Veteran timely appealed and, as noted in the introduction, an increased rating to 30 percent was awarded during the pendency of the appeal, effective October 5, 2021. For the reasons outlined below, the Board finds no basis to award an increased rating or separate rating at any time on appeal. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes (DC) 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula are made 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. Prior to February 7, 2021, DC 5242 was assigned for degenerative arthritis of the spine and DC 5243 for IVDS. As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and degenerative disc disease other than IVDS. It also amends DC 5243 for IVDS, allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise DC 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated degenerative disc disease from IVDS, the rating formula under each diagnostic code was unchanged. The General Rating Formula provides for assignment of a 20 percent rating when 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 is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating requires forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. Id. at Note (1). The Court of Appeals for Veterans' Claims Court (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). 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). Painful motion is entitled to a minimum 10 percent rating, per joint, even if there is no actual limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to the relevant evidence of record, the Veteran was seen after service by a private doctor in April 2008 complaining of right neck pain radiating to his right shoulder, medial upper arm, forearm and top of his hand. He denied any numbness, tingling, weakness, or exacerbation of pain with mechanical maneuvers. After a physical and a review of an MRI of the cervical spine in June 2008 which indicated the presence of spondylitic disease as well as evidence of herniation at C5 - C6 the physician's assessment was that the symptoms were related to spondylitic disease with right-sided foraminal narrowing. An examination in November 2008 revealed cervical flexion of 30 degrees; extension 45 degrees; right lateral rotation 50 degrees; left lateral rotation 45 degrees; right lateral flexion 20 degrees; and left lateral flexion 20 degrees. The combined ROM was 190 degrees. The doctor noted no accompanying symptoms except pain. A CT scan in April 2011 revealed a straightening of the normal hepatic curvature of the cervical spine, but no subluxation was detected. The scan also showed that the hardware from the earlier surgery was still intact and had not become infected. During a VA examination in July 2011 for a skin condition on his hands, the Veteran reported stiffness and "rare" tingling in the fourth and fifth fingers of both hands. The Veteran was afforded a VA examination in August 2011 for his spine condition, where he reported that both shoulders sometimes radiated with "dull pain." He additionally reported "weekly" flare-ups of pain that lasted for hours that appeared to be triggered by the wrong posture and physical activity. The examiner noted that the Veteran's posture was stooped and his gait antalgic. He found no evidence of either cervical spine or thoracolumbar spine ankylosis, however. Active ROM testing showed cervical flexion of 30 degrees; extension 20 degrees; right lateral rotation 30 degrees; left lateral rotation 30; right lateral flexion 20 degrees; and left lateral flexion 30 degrees. The combined ROM was 160 degrees. The Veteran exhibited pain upon repetitive use testing, but there was no additional loss of ROM. There was no loss of muscle strength and no muscle atrophy. The examiner detected some sensory loss in the Veteran's left mid arm brachial plexus. There was localized tenderness and guarding, but not severe enough to be responsible for an abnormal gait or abnormal spinal contour. The examiner opined that the Veteran's cervical spine condition had resulted in decreased mobility, lack of stamina, weakness or fatigue, and would severely affect specific daily activities such as participation in exercise, sports, and recreation. An April 2017 VA examination revealed that the Veteran's ROM had changed little, the only change being a loss of 10 degrees ROM of left lateral flexion. Cervical flexion was 30 degrees; extension 20 degrees; right lateral rotation 30 degrees; left lateral rotation 30; right lateral flexion 20 degrees; and left lateral flexion 20 degrees. The combined ROM was 150 degrees. The veteran exhibited pain all ranges of motion, including on passive motion testing, but reported no pain in weight bearing and no flare-ups. There was tenderness on palpation of the lower cervical spine, but no guarding or muscle spasms. The Veteran denied suffering flare-ups. The Veteran was able to perform repetitive use tests with no loss of ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There appeared to be no muscle atrophy or loss of muscle strength nor was ankylosis or any other neurologic abnormality detected. The examiner did not find any indications of IVDS. Nor did he note radicular pain or "any other signs or symptoms due to radiculopathy." He concluded that the Veteran's cervical spine condition did not impact the Veteran's ability to work. In an NOD filed in April 2017 the Veteran maintained that he had been diagnosed with cervical spine ankylosis. In a Form 9 filed two months later, in June 2017, he contended that he had suffered incapacitating episodes during which he had been bedridden for at least 10 weeks suffering severe pain. At a Board hearing in May 2021, the Veteran testified that he suffered "debilitating" pain in his neck which had a "significant" impact on his range of motion. He related that he had difficulty standing on cement floors for more than 20 or 30 minutes due to the "severe" pain it caused. He added that he often had to wear a neck brace to relieve the pressure on his spine. He initially denied suffering flare-ups, maintaining that the pain was "usually all the time," but later testified that he suffered flare-ups after he had been on his feet for a long period. He described the episodes as occurring three or four times a day and "constantly hurting" so that it was "hard to evaluate when it flares up and when it doesn't." The episodes lasted "anywhere from 15 minutes to a couple of hours, he maintained. His condition had worsened, he told the board, since his examination in April 2017. The Veteran also reported occasionally getting a "numb and tingling" sensation in his hands when he has scratched the back of his hand, an indication, he was told by a surgeon twenty years earlier, of problems with his spine and neck. An examination by a VA service provider in October 2021 determined that the cervical spine ROM in active testing had indeed worsened: cervical flexion was 20 degrees; extension 20 degrees; right lateral rotation 30 degrees; left lateral rotation 30; right lateral flexion 20 degrees; and left lateral flexion 15 degrees. The combined ROM was 130 degrees. The Veteran exhibited pain in each range of motion; he subjectively reported pain in forward flexion at 15 degrees but was able to "push through" the pain and reach a forward flexion at 20 degrees. Passive ROM testing was not performed because it was medically constrained by the risk of harm to the Veteran. He was able to perform repetitive use testing, however, without a loss of ROM. He was not examined for repetitive use over time because the Veteran's statement to the examiner had not suggested pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit his functional ability with repeated use over time. He was not examined during a flare-up, but based on the Veteran's report, the examiner opined that pain during a flare-up would significantly limit his functional ability. The examiner estimated his cervical ROM during a flare-up as: cervical flexion 10 degrees; extension 10 degrees; right lateral rotation 15 degrees; left lateral rotation 15; right lateral flexion 10 degrees; and left lateral flexion 10 degrees. The examiner found no evidence of crepitus. She noted evidence of "mild" localized tenderness on palpation of the joint or soft tissue, which she attributed to the Veteran's degenerative disc disease, but observed that it was not sufficient to result in an abnormal gait or spinal contour. She detected no muscle spasms, guarding, loss of muscle strength, muscle atrophy, or IVDS. The examiner detected no radicular pain or any other signs or symptoms due to radiculopathy and no indications of ankylosis. The examiner concluded that the functional impact of the Veteran's cervical spine condition was that he would have difficulties with tasks that require full ROM looking upward, downward, and turning of his head from side-to-side. Comparing the active ROM results from her October 2021 examination to the results from the April 2017 exam, she observed that there was "little change" between the two and the findings did not "align" with a functional impairment equivalent to ankylosis. Reviewing specific studies in the medical literature that compared clinical cervical ROM results with those used to perform simulated activities of daily living in asymptomatic patients, she demonstrated that the Veteran's ROM was within the ranges necessary for most activities, and therefore did not meet the criteria for functional impairment equivalent to ankylosis. She additionally opined that the Veteran's complaints of tingling in both hands were not manifestations of cervical radiculopathy. She explained that although the Veteran reported symptoms of tingling in his fingers and the tops of his hands, he also reported that they did not go past his writs. Positive test results to Phalen's Sign and Tinsel's Sign indicated that the median nerve was affected, she declared. In light of the Veteran's previous occupation as a mechanic, her presumptive diagnosis was bilateral carpal tunnel syndrome, and added that EMG studies were needed to confirm the diagnosis. Evaluation Prior to October 5, 2021 Prior to September 14, 2021, as outlined above, the Veteran's cervical spine condition was manifested by a cervical flexion of greater than 15 degrees and a combined ROM of greater than 170 degrees. The November 2008 examination by a private provider revealed cervical flexion of 30 degrees and combined ROM of 190. The VA examination in August 2011 disclosed cervical flexion of 30 degrees and a combined ROM of 160. The VA examination in April 2017 produced flexion of 30 and a combined ROM of 150. The August 2011 VA and April 2017 VA examiners were able to measure both active and passive ROM; ROM after repetitive use; ROM after repeated use over time, and found little or no additional loss of ROM. The Veteran did not report symptoms of 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 did either examination reveal any. Neither examiner found evidence of IVDS. Although the Veteran claimed he had multiple incapacitating episodes, there is no record that he was ever treated by a physician for IVDS or that he was ever prescribed bed rest by a physician. None of the examiners found any indication of favorable ankylosis as defined by the VA, the fixation of a spinal segment in neutral position (zero degrees) - or its functional equivalent. The record contains no clinical evidence that the Veteran ever suffered a complete limitation of motion of his cervical spine or other manifestations of ankylosis. See Johnston v. Brown, 10 Vet. 80, 85 (1997) (no evidence "whatsoever" suggesting complete limitation of motion). The symptoms therefore most nearly approximated the criteria for a 20 percent rating assigned by the RO under DC 5237, rather than the next higher rating of 30 percent under the same Rating Formula. Further, the persuasive evidence is against a finding that the Veteran's spine disability manifested in cervical spine radiculopathy. To be sure, the Veteran complained of numbness and tingling sensations on occasion throughout the appellate time frame. But neither the August 2011 examiner nor the April 2017 examiner found and signs or symptoms of radiculopathy. The 2008 private physician assessed spondylitic disease but specifically noted no ankylosis. Radiologists who reviewed tests result throughout the period concluded there were no acute radiographic or neurological abnormalities. For these reasons, although the Board acknowledges the Veteran's reported symptoms of numbness and tingling, the Board further finds the persuasive evidence is overwhelmingly against a finding that his lumbar spine disability included neurological manifestations. Indeed, the Veteran's lay reported manifestations have been inconsistent throughout time and have never been objectively confirmed by MRI, X-ray, EMG, NCV, or any other objective testing. Evaluation After September 14, 2021 The Board also finds that for the rating period after October 5, 2021 the Veteran's cervical spine condition was manifested by symptoms of cervical spinal flexion of fifteen degrees or less. The symptoms most nearly approximate the criteria for a 30 percent rating assigned by the RO under DC 5241. The symptoms do not more nearly approximate the next higher rating of 40 percent under the same Rating Formula. The October 2021 examiner did not find unfavorable ankylosis of the entire spine. Indeed, she specifically rejected a diagnosis of ankylosis or the functional impairment equivalent to ankylosis in a carefully reasoned analysis that specifically relied on relevant medical studies and comparisons. Even taking into account additional functional limitation due to pain, the VA examination and VA treatment records indicate that the Veteran's cervical spine condition does not more nearly approximate the 40 percent criteria. The October 2021 VA examiner also did not discover any neurological manifestations stemming from the cervical spine warranting separate ratings. She found no signs or symptoms of radiculopathy during her examination, even after administering several tests to detect it. There was no objective evidence from radiological examinations, MRIs, or X-rays that suggest any nerve root compression or irritation that would cause radicular symptoms or radiculopathy. Moreover, the examiner offered an alternative explanation for the Veteran's reported phenomena that appears more consistent the objective data than a diagnosis of ankylosis or its functional equivalent. The October 2021 examiner also saw no evidence of IVDS. The Veteran did report that he missed several days of work each month due to pain during flare-ups, principally, the report notes, to go to doctors' visits, but he did not report that he required bed rest, much less that he was prescribed bed rest by a physician. The record contains no evidence, other than the Veteran's bare claim in his April 2017 NOD that he was confined to bed, that he suffered complete limitation of motion of his cervical spine or that he was unable to move or suffered other symptoms of IVDS. Compare Johnston v. Brown, 10 Vet. 80, 85 (1997) (no evidence "whatsoever" suggesting complete limitation of motion) with Chavis v. McDonough, 34 Vet. App. 1, 12 (2021) (evidence that veteran was completely immobilized). Based on the foregoing, the Board finds that a rating in excess of 30 percent for the Veteran's cervical spine condition is not warranted at any time after October 5 2021. There is no evidence of unfavorable ankylosis or its functional equivalent at any time. As such, the criteria for a rating in excess of 30 percent have not been met throughout the period. Further, the Veteran has not been diagnosed with IVDS nor is there any evidence of that he was prescribed by a physician. Additionally, there is no evidence of associated radiculopathy or neurologic abnormalities warranting additional ratings under other diagnostic codes. In that regard, the October 2021 VA examiner found that the Veteran's complaints of tingling in both hands were not manifestations of cervical radiculopathy because the manifestations did not go beyond his wrists. Although the preliminary diagnosis of carpal tunnel syndrome could not be confirmed without further diagnostic testing, the examiner conclusively ruled out cervical radiculopathy. For those reasons, the Board finds the examination is adequate for purposes of rating the cervical spine condition at issue, to include concluding that the Veteran's cervical spine condition does not warrant separate neurological ratings at any time. The Board has considered the Veteran's disability picture and the tools available under the VA Schedule for Rating Disabilities and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that are not contemplated by the available schedular tools used to rate his disability. The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. The Board therefore finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assertions as to the severity of his disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As the evidence is persuasively against a rating higher than 20 percent before October 5, 2021, and in excess of 30 percent, thereafter, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.