Citation Nr: 22013205 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-36 676 DATE: March 9, 2022 ORDER Entitlement to an initial rating of 30 percent, but no higher, for a cervical spine disability is granted. FINDING OF FACT The Veteran's cervical spine disability exhibits forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine, but does not show unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for entitlement to an initial 30 percent rating, but no higher, for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 weightbearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged 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. Entitlement to an initial rating for a cervical spine disability greater than 20 percent The Veteran's cervical spine disability is currently rated as 20 percent disabling beginning March 9, 2010, under Diagnostic Code 5242. The Veteran contends he is entitled to an increased rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine 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 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. The Veteran attended a January 2009 VA examination for evaluation of myofascial pain to thoracic and lumbar spine during which the Veteran reported mid to upper back and neck stiffness with daily flareups. The examination showed forward flexion limited to 80 degrees, extension to 25 degrees, right and left lateral rotation to 20 degrees, and right and left lateral flexion to 20 degrees. The examiner stated that the Veteran had pain, fatigue, weakness, and lack of endurance. With repeated use, the Veteran's extension was limited to 20 degrees. The examiner found no ankylosis, and no signs of incapacitating episodes during the past 12 months. The Veteran attended a May 2011 VA examination. The examination showed the Veteran had normal range of motion of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The examiner stated that the Veteran had pain, fatigue, weakness, and lack of endurance. The Veteran reported daily flare-ups that were alleviated only by lying down on the left side and limited lifting, bending, twisting, sitting, and standing. The Veteran reported that pain occasionally radiated to the right shoulder. The examiner found no sensory abnormalities of the upper extremity, no ankylosis, and no signs of cervical intervertebral disc syndrome (IVDS). The Veteran attended a January 2016 VA examination. The examination showed forward flexion limited to 30 degrees, extension to 20 degrees, right and left lateral rotation to 30 degrees, and right and left lateral flexion to 30 degrees. The Veteran reported pain and stiffness during flare-ups, and the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statement describing functional loss during flare-ups. The examiner found normal sensation of the upper extremities with no evidence of radicular pain, no ankylosis, and no IVDS requiring prescribed bedrest. The Veteran attended a September 2021 VA examination. The examination found forward flexion limited to 25 degrees, extension limited to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 55 degrees. The examiner identified pain on weight bearing, active motion, and passive motion. The examiner stated that the Veteran had pain after repeated use over time, but that this did not decrease estimated range of motion values. The examiner stated that the Veteran did not have flare-ups. However, when reporting his current symptoms, the Veteran stated that he cannot move his neck during flare-ups. He also reported difficulty sleeping and inability to lay in a supine position or stand for a long period of time. The Veteran stated he has pain down his shoulder. The examiner found a normal sensory examination with no evidence of radicular pain, no evidence of ankylosis, and no diagnosis of IVDS. The Board finds the evidence of record persuasively weighs in favor of a rating of 30 percent, but no higher, for the cervical spine disability for the entire period on appeal. While the VA examinations do not indicate flexion limited to 15 degrees or less or favorable ankylosis, the Board finds that the Veteran's credible statements of his symptoms and level of functioning during flare-ups show he most closely approximates the 30 percent criteria. As noted above, the Veteran reported during flare-ups he had to lie down and that he could not move his head. The Board finds that this is functionally equivalent of favorable ankylosis of the neck, and therefore the Veteran is entitled to a 30 percent rating for the entire period on appeal. A rating in excess of 30 percent is only warranted when there is unfavorable ankylosis of the entire cervical spine that results in one of the additional symptoms set forth in Note 5. The evidence of record persuasively weighs against a rating in excess of 30 percent for the cervical spine disability for the entire period on appeal. Neither VA examinations, lay statements, nor the Veteran's treatment records show symptoms that approximate the cervical spine fixed in a bent position and other symptoms such as limited line of vision, restricted opening the mouth, impaired breathing, or gastrointestinal problems, which is required for a 40 percent rating. The VA examinations, and the statements the Veteran made to examiners, do not show evidence of unfavorable ankylosis. While the Veteran has pain and significant restrictions in range of motion of his neck, this is adequately compensated by the 30 percent rating. Neither the medical evidence nor the Veteran's lay statements regarding his functional limitation show that he has unfavorable ankylosis of the cervical spine. The Board acknowledges that the January 2009, May 2011, January 2016, and September 2021 VA examinations do not adequately consider the Veteran's functional limitations during flare-ups. However, the Board has found the Veteran's statements regarding his level of functioning during flare-ups credible and probative, and has assigned a rating with careful consideration of the Veteran's reported symptoms. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS that was 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. The Board notes that the May 2021 remand indicates some medical evidence of radicular pain. As noted in the remand, a January 2017 VA treatment record found "mid-back pain, most likely radicular in nature." However, the September 2021 VA examination found the Veteran had no upper extremity radiculopathy. The Board notes that the January 2017 medical record attributed the Veteran's radicular pain to his thoracic spine, specifically the thoracic vertebrae T7 through T9, not his cervical spine. Of note, the Veteran is separately service-connected for back disability. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his cervical spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. The Veteran's radicular symptoms have not been attributed to his cervical spine disability by any medical professional. The Board notes that effective February 7, 2021, VA amended the musculoskeletal rating criteria. Diagnostic Code 5242, which is the code the Veteran is currently rated under, was not changed. The Board finds the Veteran would not be entitled to a rating in excess of 40 percent under the amended rating criteria for the period from February 7, 2021, either. For the foregoing reasons, the evidence persuasively supports a rating of 30 percent, but no higher, for the entire period on appeal. In denying a rating in excess of 30 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.