Citation Nr: 22013268 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-07 527 DATE: March 9, 2022 ORDER Entitlement to an initial rating in excess of 10 percent prior to February 26, 2020, for cervical strain is denied. FINDING OF FACT For the period prior to February 26, 2020, the Veteran's service-connected cervical strain was not characterized by flexion greater than 15 degrees but less than 30 degrees, nor combined range of motion less than 170 degrees, nor muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for the period prior to February 26, 2020, for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from November 2005 to April 2010. The issues are on appeal from a December 2011 rating decision. In September 2021, the Board most recently remanded the issue on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Entitlement to an initial rating in excess of 10 percent prior to February 26, 2020, for cervical strain The Veteran's service-connected cervical strain is currently rated pursuant to 38C.F.R. §4.71a, DC 5237. Under the General Rating Formula, a disability rating of 10 percent is assigned for forward flexion of the cervical spine greater than 30 degrees but less than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but less 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. 38C.F.R. §4.71a, DC 5237. A 20 percent evaluation is provided for forward flexion of the cervical spine greater than 15 degrees but less than 30 degrees; or 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. Id. A 30 percent disability rating is assigned when forward flexion of the cervical spine is measured at 15 degrees or less; or when the evidence shows favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is provided when the evidence shows unfavorable ankylosis of the entire cervical spine. Id. 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 are zero to 45 degrees, and left and right lateral rotation are 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.38C.F.R. §4.71a, General Formula, Note 2; see also Plate V. 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.38C.F.R. §4.71a, General Formula, Note5. Initially, the Board notes the evidence reveals that neither the Veteran, private providers, the March 2011 or February 2020 VA examiners have noted that he has had an incapacitating episode as defined by the regulation, the Formula for Rating Intervertebral Disc Syndrome does not apply. The Veteran is currently rated at an initial 10 percent for the period prior to February 6, 2020, for his cervical strain. Turning to the evidence, VA and private medical records reveal continued complaints of neck pain and tenderness. The Veteran's treatment plan included a TENS unit and physical therapy. Notably, in January 2010, a VA provider found no tenderness of the Veteran's neck and found that his neck demonstrated no decrease in suppleness. The Veteran was afforded a general medical VA examination in March 2011. The Veteran complained of severe pain; decreased range of motion with forward flexion of the cervical spine; weakness; lack of endurance; and fatigability. These symptoms occurred daily and constantly. He denied any radiation; bladder or bowel dysfunction; need for assistance devices; nor flare-ups. The Veteran reported that pain increased when moving his head forward, and this hindered his work. Although he had received a trigger point injection in the year prior, the injection only helped with his pain temporarily. The Veteran did not require prescribed bed rest over the past 12 months due to his cervical strain. The examiner diagnosed the Veteran with cervical strain, no functional limitations. The March 2011 examiner conducted range of motion testing. Forward flexion measured to 45 degrees; extension to 45 degrees; bilateral lateral flexion to 45 degrees, each side; and bilateral lateral rotating to 80 degrees, each side. These measurements did not change after three repetitions. Tenderness on the left cervical side was observed. An x-ray conducted showed normal cervical spine. In March 2012, a private provider found full range of motion and no tenderness to palpation of the cervical spine. In October 2021, as required by a September 2021 Board remand, the Veteran attended a VA Cervical Spine examination. In pertinent part, the examiner noted: Flare-ups are defined as any temporary or recurring SIGNIFICANT increase in signs or symptoms associated with a condition. The veteran's pain was reported as constant on evaluation, and the veteran did not note any temporary or reoccurring significant increase in signs/symptoms of the cervical condition(s). The veteran did not note experiencing Flare-ups of the condition in Section II of evaluation. Therefore, this is not classified as a 'flare-up' on today's evaluation in accordance with the VA's definition. *In regards to the Veteran's reports of flare-up episodes prior to February 26, 2020, to include his report of flare-ups during the March 2011 VA examination-- the claimant reports the pain is nearly constant in his neck, and only worsens if he attempts to lift left shoulder- he denies injury to left shoulder; a more comprehensive exam could be conducted if the left shoulder were to be evaluated as well. On 9/25/2019 C&P evaluation: The veteran reported moderate flare-ups of neck occurring at least three times a week with a duration of several days. The provider noted that pain during flare-ups did cause functional loss and provided ROM estimates, selecting "The examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare up" on this evaluation. The noted functional impact on evaluation was, "Cervical Strain causes the inability to moved head down in forward motion due to increased pain and stiffness which impacts the duties of an aircraft mechanic." (Page 388) On 3/3/2011 C&P evaluation: The evaluation noted a diagnosis of Cervical Strain. The evaluation does note severe (7-10) pain with symptomology of decreased ROM with forward flexion of the cervical spine. Under flare-ups section, "No" is marked, and 'none' is indicated for if the veteran has flare-ups (page 1850 of medical records). No incapacitating episodes noted. Fatigability noted with frequency and duration of symptoms marked as 'daily and constant;' precipitating factors noted as 'none reported, pain is always there;' and radiation/distribution/location noted as 'located on left cervical spine.' Functional impact on usual occupation noted as, "Pain increased with moving head forward, hinders work." Although the veteran reported flare-ups on 9/25/2019 and 3/3/2011 C&P evaluations, these reports were not consistent with the veteran's current evaluation as previously stated due to a lack of findings that there was a temporary or recurring significant increase in signs/symptoms. Based on the above, the Board concludes that the preponderance of the evidence is against the application of an initial disability rating in excess of 10 percent for the Veteran's service-connected cervical strain for the period prior to February 26, 2020, even when considering the functional loss as outlined in 38 C.F.R. § §§ 4.40 and 4.45 To review, the next higher rating of 20 percent requires flexion greater than 15 degrees but less than 30 degrees. Alternatively, the Veteran could demonstrate combined range of motion less than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. However, the Board finds no evidence to suggest that the Veteran experienced this degree of restriction in his neck prior to February 26, 2020. During the March 2011 VA examination, he demonstrated flexion to 45degrees and extension to 45 degrees with no notations of guarding or muscle spasm. The available VA and private treatment records are likewise absent for any indication that range of motion in the Veteran's neck was restricted to a level consistent with the 20 percent evaluation under DC 5237. Further, although the Veteran exhibited pain with range of motion testing during the March 2011 VA examination, this was not found to result in functional loss. The examiner explicitly diagnosed the Veteran with cervical strain, no functional limitations. Moreover, the Veteran denied experiencing flare-ups of his cervical strain. While the Board acknowledges that the Veteran experiences additional limitations, the evidence for this initial appeal period suggests that his neck pain and tenderness do not occur frequently enough to effectively restrict his cervical range of motion to a level consistent with the 20 percent disability rating under DC 5237. Further, as indicated by the October 2021 examiner, the Veteran's reported flare-ups during this appeal period are inconsistent with medical findings during this period. The Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under DC 5237. 38 C.F.R. §§ 4.71a, Note 1. The Board notes that no neurological abnormalities associated with the Veteran's cervical strain were noted during the appeal period. In denying further separate or higher ratings, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such aspects of the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107, 38 C.F.R. § 4.3, 4.7. As the preponderance of the evidence is against an initial disability rating in excess of 10 percent for the service-connected cervical strain prior to February 26, 2020, the claim must be denied L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.