Citation Nr: 22014940 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-14 460 DATE: March 15, 2022 ORDER Entitlement to an increased rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine, status post anterior cervical corpectomy and diskectomies is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's degenerative disc disease of the cervical spine, status post anterior cervical corpectomy and diskectomies has not more nearly approximated forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine; he has not had incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for degenerative disc disease of the cervical spine, status post anterior cervical corpectomy and diskectomies have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1966 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2014 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a hearing. In a May 13, 2014, VA Form 21-4138, Statement in Support of Claim, the Veteran withdrew his hearing request. Despite the Veteran's request to withdraw his hearing request, a November 2021 Board hearing was scheduled. In an October 2021 VA Form 27-0820, Report of General Information, the Veteran requested a hearing cancelation. In an October 2021 VA Form 21-4138, the Veteran's representative reiterated the Veteran's request to cancel the hearing. Accordingly, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Entitlement to an increased rating in excess of 20 percent for a cervical spine disability. Procedural History In a February 1988 rating decision, the Veteran was granted service connection for degenerative arthritis of the cervical spine and assigned 10 percent rating effective August 1, 1986. In an October 2009 rating decision, the Veteran was assigned a 20 percent rating effective, March 31, 2009. In the July 2011 rating decision currently on appeal, the Veteran was assigned a temporary 100 percent rating from November 16, 2009 based upon surgical or other treatment necessitating convalescence, and then assigned a 20 percent rating from February 1, 2010. This rating decision also recharacterized the Veteran's disability as degenerative disc disease of the cervical spine, status post anterior cervical corpectomy and diskectomies. As the temporary 100 percent rating represents the maximum grant of available benefits, this period of convalescence is not on appeal, and shall not be considered in this analysis. In a January 2018 Board decision, the issue of a higher rating for a low back disability was remanded to afford the Veteran a VA examination. The Veteran received a VA examination in August 2018, however the July 2020 Board decision found that the August 2018 examination was inadequate and remanded the issue once again for a new VA examination. The Veteran was afforded another VA examination in August 2020, however the March 2021 Board decision found that the August 2020 VA examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In March 2021, the RO sent a request to have the Veteran scheduled for a VA examination to assess the severity of his cervical spine disability. In June 2021, the Veteran called VA to report that he declined to attend any additional VA examinations, and to decide the claim without him attending a VA examination appointment. In a February 2022 statement, the Veteran's representative explained that the Veteran did not have transportation sufficient to attend a VA examination. In a February 2022 statement, the Veteran's representative stated that the Veteran wished to have the claim decided based upon the evidence of record, as he would be unable to attend any future VA examinations. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Here, the Veteran reported that he was unable to receive transportation to a scheduled VA examination, and to decide the claim upon the current evidence of record. As such, even if the Board found that the Veteran provided good cause for not attending a VA examination, scheduling the Veteran for another VA examination to assess the severity of his cervical spine disability would be futile, as he would be unable to attend the examination. Also, the Veteran's statements reflect that he declined another a VA examination regarding his higher rating claim for a cervical spine disability. Accordingly, the Board shall decide this claim based upon the evidence of record. As such, there has been substantial compliance with the actions requested in the Board's prior remand. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). Rating Criteria The Veteran's cervical spine disability is rated as 20 percent disabling under DC 5243. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. The General Rating Formula for Diseases and Injuries of the Spine were not changed by the revisions to the musculoskeletal system, effective February 7, 2021. Under the General Rating Formula, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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. Id. A 30 percent evaluation is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 thoracolumbar spine is 240 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. Id. The rating criteria provide that 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. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). IVDS is rated under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a, DC 5243. The revisions to the musculoskeletal system, effective February 7, 2021, indicated that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; Diagnostic Code 5242 is to be assigned for all other diagnoses. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted 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 rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). VA Examinations As discussed above, this matter was previously remanded by the Board in July 2020 in order to obtain an adequate medical opinion with findings consistent with Correia v. McDonald, 28 Vet. App. 158. To this extent, in the August 2018 and August 2020 VA examination reports, the VA examiners indicated that either the range of motion with nonweight bearing and/or passive range of motion testing of the spine was not medically feasible and was inappropriate. The August 2018 examiner explained that such testing was not performed the due to risk of injury to the Veteran. Notably, active range of motion testing produces range of motion test result figures, which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Also, weight-bearing would generally produce more restrictive results than testing done without weight-bearing. The matter was also remanded by the Board in March 2021 based on a finding that the August 2020 VA examination did not comply with the requirements in Sharp 29 Vet. App. at 34-36. In the August 2020 examination, he examiner noted that when asked, the Veteran did not report any flare-ups. Analysis For the following reasons, the evidence is persuasively against the award of an increased rating in excess of 20 percent for a cervical spine disability. The evidence shows that the Veteran's cervical spine disability manifested with pain and limitation of motion, but did not more nearly result in forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine, to warrant a 30 percent rating. For example, at worst, the August 2020 VA examination shows that the Veteran had forward flexion to 40 degrees, extension to 25 degrees, bilateral lateral flexion to 25 degrees, bilateral lateral rotation to 50 degrees, and no ankylosis was found. The Veteran denied experiencing flareups of the cervical spine. The range of motion itself contributed to functional loss manifested by pain. Pain was found on extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine was documented, with tenderness over the para-cervical area. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, however the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over a period of time. The Veteran did not have IVDS. In March 2011 VA Form 21-4138 and a March 2012 statement, the Veteran stated that his pain has increased significantly, hindering his ability to work or take care of himself. In a March 2013 VA Form 21-4138, the Veteran recounted the progression of his disability and related treatments. These statements do not specifically describe the Veteran's cervical spine disability limitation of motion, and do not otherwise imply that the Veteran experiences ankylosis. In the March 2011 VA examination, the Veteran was found to have flexion to 30 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, left lateral rotation to 45 degrees, right lateral flexion to 30 degrees, right lateral rotation to 40 degrees and no ankylosis. No objective evidence of pain on active range of motion or following repetitive motion was found, and there were no additional limitations after three repetitions of range of motion. The Veteran reported that he only had flare-ups of his lumbar spine. An MRI of the cervical spine showed severe degenerative disc changes in the cervical spine, severe central canal stenosis, cord compression with mild amount of abnormal cord signal, and foraminal narrowing throughout the cervical spine. In November 2017, the Veteran submitted an article entitled "How Degenerative Disc Disease Progresses," that provided general medical information about the progression of this disability. However, this evidence does not support that the Veteran's cervical spine disability is manifested by forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. Additionally, these excerpts are not the equivalent of a statement from a medical expert who actually reviewed the Veteran's medical history and rendered an opinion based on the specifics of the Veteran's history. The August 2018 VA examination showed that the Veteran's forward flexion was limited to 45 degrees, extension to 25, right and left lateral flexion to 20 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 50 degrees and no ankylosis of the spine was found. The Veteran denied flare-ups of the cervical spine, and expressed that he had functional loss manifested by reduced range of motion. Pain was noted on the examination and caused functional loss with extension, but there was no evidence of pain with weight bearing. Objective evidence of localized tenderness or pain on palpation of the joint or associated tissue of the cervical spine was found, and was characterized as generalized with regarding to location and severity. No additional loss of function or range of motion after three repetitions was reported. The Veteran was not being examined immediately after repetitive use over time, and the examiner stated that this was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The examiner explained that there is no conceptual or empiric basis for making such a determination without directly observing function under these conditions. In a July 2012 VA treatment record, postsurgical changes of the cervical spine were noted. VA treatment records do not otherwise support additional evaluation of the Veteran's cervical spine disability during the appeal period. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence is persuasively against a finding of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine, which is the criteria needed for a 30 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and reflexes in his lower extremities, and that he had forward flexion between 30 to 45 degrees. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain, flare ups, and functional limitations would more early approximate forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. In other words, the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's cervical spine symptoms were not shown to have been so disabling to actually or effectively result in forward flexion of the cervical spine 15 degrees or less or fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula. In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss. Therefore, ratings in excess of those assigned are not warranted under the schedular criteria. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. Further, the Board has considered whether the Veteran is entitled to an increased disability rating under DC 5243 [intervertebral disc syndrome]. Crucially, the competent evidence of record does not demonstrate that the Veteran has experienced any incapacitating episodes, as defined in Note 1 of DC. There is no evidence of record demonstrating that, at any time during the appeal period, a physician prescribed bed rest during such episodes to justify a higher rating under DC 5243. See the VA examination reports dated in August 2018 and August 2020. Thus, rating the Veteran under the formula for evaluating intervertebral disc syndrome based on incapacitating episodes would not avail him of increased disability ratings for his service-connected cervical spine disability. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased rating in excess of 20 percent for a cervical spine disability is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND The issue of a TDIU is remanded. In the March 2021 remand, the Board found that the issue of a TDIU was raised as part and parcel of the increased rating claim for a cervical spine disability. Indeed, the evidence shows that during VA examinations and in the Veteran's statements, he indicated that he was unable to continue his employment as a truck driver due to his low back disability. See VA examination report (March 2011); Veteran's statements (March 2011; March 2012). In fact, in a March 2011 VA Form 21-4138 and a March 2012 statement, the Veteran stated that his pain has increased significantly, hindering his ability to work or take care of himself. The medical evidence shows that the Veteran had limited range of motion in the cervical spine. The August 2018 and August 2020 VA examiners noted that the Veteran's ability to perform physical work was impacted by his service-connected cervical spine disability. In this case, the Veteran does not currently meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In March 2021, the Board remanded the issue of a TDIU to afford the Veteran an opportunity to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In the February 2022 appellant's brief, the Veteran's representative indicated that the VA Form 21-8940 "has not been received by VA". Regardless, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, namely his cervical spine disability. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019) (the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities"). Therefore, a remand for referral to the Director of Compensation is therefore warranted. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director of Compensation pursuant to 38 C.F.R. § 4.16(b). Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.