Citation Nr: 22016281 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-37 574 DATE: March 21, 2022 ORDER An initial disability rating higher than 10 percent for the service-connected lumbosacral strain (back disability) for the entire rating period from September 22, 2015, is denied. A higher (compensable) initial disability rating for the service-connected cervical strain (neck disability) with intervertebral disc syndrome (IVDS) from September 22, 2015, to September 27, 2019, is denied. An initial disability rating higher than 20 percent for the service-connected neck disability from September 27, 2019, forward, is denied. FINDINGS OF FACT 1. For the entire rating period from September 22, 2015, the back disability was manifested by forward flexion ranging from 80 to 90 degrees, a combined range of motion ranging from 210 degrees to 240 degrees, and incapacitating episodes for a total duration of at least one week but less than two weeks. 2. For the rating period from September 22, 2015, to September 27, 2019, the neck disability was manifested by forward flexion to 45 degrees, a combined range of motion to 340 degrees, and normal gait and posture with no flare-ups, functional loss, or functional impairment and a history of intermittent neck pain. 3. For the rating period from September 27, 2019, forward, the neck disability was manifested by forward flexion limited to 25 degrees, a combined range of motion of 220 degrees, and chronic neck pain with normal gait and posture. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for the back disability have not been met or approximated for any period. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a higher (compensable) initial rating for the neck disability have not been met or approximated from September 22, 2015, to September 27, 2019. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. The criteria for an initial disability rating higher than 20 percent for the neck disability have not been met or approximated from September 27, 2019, forward. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 2008 to May 2010, July 2010 to November 2011, and from July 2014 to September 2015. This matter is on appeal from a January 2016 rating decision. In May 2019, the Board, in pertinent part, denied higher initial ratings for the back and neck disabilities. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court or CAVC). The May 2019 Board decision was remanded pursuant to an April 2020 Joint Motion for Partial Remand (Joint Motion or JMPR). The Joint Motion vacated the issue of a higher initial rating for the back disability on the basis that the January 2016 VA examiner's explanation regarding flare-ups was inadequate because it did not reflect whether the examiner elicited information from the Veteran or whether such information as to functional ability during flare-ups could be gleaned from medical records or other sources. The Joint Motion ordered the Board to consider whether a new medical opinion for the back that adequately addressed functional loss was necessary. Additionally, the Joint Motion vacated the issue of a higher initial rating for the neck disability on the basis that the December 2018 hearing testimony suggested a material change in condition for the neck disability and the Board improperly rejected the testimony based on medical records that preceded the testimony by some time. The Joint Motion ordered the Board to determine whether a new examination was necessary in light of the Veteran's testimony. In November 2020, the Board remanded the appeals for VA examinations. Because the June 2021 and July 2021 VA examinations were adequate, to include adequate consideration of functional loss, and the appeals were readjudicated in July 2021, the Board finds that there was compliance with the prior remand directives. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. DISABILITY RATING LEGAL AUTHORITY Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. An initial disability rating higher than 10 percent for the back disability for the entire rating period is denied. For the entire initial rating period from September 22, 2015, the service-connected back disability is rated at 10 percent under the criteria at 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain; however, given the diagnosis of intervertebral disc syndrome (IVDS), the Board finds that the back disability is more appropriately rated under DC 5243 for IVDS. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that the choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Under the rating schedule, IVDS is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Regarding the Formula for Rating Intervertebral Disc Syndrome, which based on a total of incapacitating episodes during a 12 month period, the rating criteria provide that a 10 percent rating is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period. 38 C.F.R. § 4.71a, DC 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). In this case, the evidence weighs against finding that an initial rating higher than 10 percent is warranted for the back disability based on incapacitating episodes for any period. 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). At the July 2021 VA examination, the examiner noted that back treatment had required physician-prescribed bed rest for a total duration of at least one week but less than two weeks during the last 12 months, which is consistent with the 10 percent rating criteria. Because the evidence shows no physician-prescribed bed rest for a period of at least two weeks but less than four weeks during the past 12 months period at any time during the rating period, the criteria for an initial rating higher than 10 percent for the back disability based on incapacitating episodes have not been met or approximated for any period. 38 C.F.R. §§ 4.3, 4.7. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 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. A 40 percent rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The Board finds that the lay and medical evidence is against finding that the criteria for a rating higher than 10 percent for the back disability have been met or approximated for the rating period under the rating formula for spine disabilities. Throughout the rating period, the back disability was manifested by forward flexion ranging from 80 to 90 degrees, a combined range of motion ranging from 210 degrees to 240 degrees, and intermittent low back pain and tenderness with normal gait and posture. The back disability picture demonstrated for this portion of the rating period is consistent with the schedular criteria for a 10 percent rating; therefore, no rating higher than 10 percent is warranted for any period based on the formula for rating spine disabilities. The Veteran has a separate 10 percent rating effective from September 22, 2015, for right lower extremity sciatic nerve radiculopathy. The radicular symptoms and resulting functional impairment in the right lower extremity are contemplated in the separate 10 percent rating. No other neurological impairment related to the back disability is shown. 2. A higher (compensable) initial disability rating for the neck disability from September 22, 2015 to September 27, 2019, is denied. 3. An initial disability rating higher than 20 percent for the service-connected neck disability from September 27, 2019, forward, is denied. The neck disability was initially rated at 0 percent (noncompensable) from September 22, 2015 to September 27, 2019, and at 20 percent thereafter, under the criteria at 38 C.F.R. § 4.71a, DC 5243 for IVDS. See 38 C.F.R. § 4.31 (providing for zero percent ratings in every instance where the schedule does not provide a zero percent rating for a diagnostic code and the requirements for a compensable rating are not met). IVDS is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Regarding the Formula for Rating Intervertebral Disc Syndrome, which based on a total of incapacitating episodes during a 12 month period, the rating criteria provide that a 10 percent rating is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period. 38 C.F.R. § 4.71a, DC 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). In this case, the evidence weighs against finding that a higher rating for the neck disability is warranted based on incapacitating episodes for any portion of the entire rating period (i.e., from September 22, 2015 forward). 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). Throughout the entire rating period, the neck disability has not required any physician-prescribed bed rest, so the criteria for a higher initial rating for the neck disability based on incapacitating episodes have not been met or approximated for any period (either from September 22, 2015, to September 27, 2019, or from September 27, 2019, forward). 38 C.F.R. §§ 4.3, 4.7. The bedrest is for the separately rated low back disability, rather than for the neck disability, so may not be attributed to the neck disability. See 38 C.F.R. § 4.14. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is provided 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 under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is provided 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. A 30 percent rating is provided for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is provided for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. After review of the lay and medical evidence of record, the Board finds that the evidence is against finding that the criteria for a compensable rating for the neck disability under the rating formula for spine disabilities have been met or approximated for the portion of the rating period from September 22, 2015 to September 27, 2019. At the January 2016 VA examination, the neck disability was manifested by forward flexion to 45 degrees, a combined range of motion to 340 degrees with normal gait and posture. There are no findings in the treatment records relevant to this portion of the rating period showing more severe symptoms and functional impairment due to the neck disability. On the March 2016 NOD, the Veteran acknowledged that he had full range of cervical spine motion but wanted a 10 percent rating because he expected the cervical spine disability to worsen in the future. While there is a history of intermittent neck pain reflected in treatment records dated approximately two years or more before the rating period, the evidence demonstrated no pain during range of motion testing at the January 2016 VA examination, and the Veteran specifically denied experiencing any flare-ups, functional loss, or functional impairment due to the neck disability at that time. There is no indication of neck pain during this stage of the rating period. Because the neck disability picture demonstrated for this portion of the rating period is consistent with the assignment of a 0 percent rating (i.e., does not meet the criteria for a 10 percent schedular rating), no compensable rating is warranted based on the formula for rating spine disabilities for the period. After review of the lay and medical evidence of record, the Board finds that the evidence is against finding that the criteria for an initial rating higher than 20 percent for the neck disability under the rating formula for spine disabilities have been met or approximated for the portion of the rating period from September 27, 2019, forward. At the June 2021 VA examination, the neck disability was manifested by forward flexion to 25 degrees, a combined range of motion to 220 degrees, and chronic neck pain with normal gait and posture, which is consistent with the 20 percent schedular criteria. Even when considering additional limitations of motion and function due to pain and other joint rating factors, forward cervical spine flexion was not limited to 15 degrees or less, and there was no disability picture approximating ankylosis of the cervical spine (i.e., joint immobility and consolidation of a joint) for any period, which are the manifestations contemplated by the next higher 30 percent rating criteria. There are no findings in the treatment records relevant to this portion of the rating period showing a more severe level of symptoms and functional impairment. Because the neck disability picture demonstrated for this portion of the rating period is consistent with the 20 percent schedular rating criteria, an initial rating higher than 20 percent for the neck disability is not warranted based on the formula for rating spine disabilities for the period from September 27, 2019, forward. The Veteran has separate 10 percent ratings effective from June 10, 2021, for right and left upper extremity (upper radicular group) radiculopathy, and the radicular symptoms and resulting functional impairment in the upper extremities are contemplated in the separate 10 percent ratings; no other neurological impairment related to the neck disability is shown. The Board finds that neither the Veteran nor the record has raised the issue of an extraschedular rating for the initial rating appeals. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.