Citation Nr: 22019075 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-17 015A DATE: March 31, 2022 ORDER A 30 percent evaluation, but no higher, for a cervical spine disability prior to July 13, 2019, is granted. FINDING OF FACT Prior to July 13, 2019, when considering functional impairment during flare-ups, the Veteran's cervical spine disability was manifested by forward flexion of the cervical spine of 15 degrees, but the Veteran's cervical spine disability did not cause him to have unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 30 percent, but no higher, for a cervical spine disability from June 11, 2012, to July 13, 2019, have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5010-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1986 to January 1990. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision, dated August 2013, issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned Judge in August 2019. The hearing transcript has been associated with the Veteran's file. In its January 2021 decision, the Board denied the issues of entitlement an evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019, and an evaluation greater than 30 percent thereafter; dismissed the issues of entitlement to an increased rating for left rhomboid strain and entitlement to an earlier effective date for the grant of service connection for a left rhomboid strain; and, remanded the issue of entitlement to service connection for migraines. The Veteran appealed the denial of an evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019, to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Partial Remand (JMPR), which found that the Board did not provide adequate reasons and basis for its denial. The denial of an evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019, was vacated and remanded to the Board for further adjudication. The remainder of the Board's decision was left undisturbed. In March 2021, the Veteran was granted service connection for migraines. This is considered a full grant of the benefits sought. Therefore, the only issue before the Board is entitlement to an evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019. Entitlement to an evaluation greater than 10 percent for a cervical spine disability prior to July 13, 2019. A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran's cervical spine disability is rated as 10 percent disabling under Diagnostic Code 5010-5242 from June 11, 2012, to July 13, 2019. The period on appeal is from June 11, 2012, the date of the Veteran's claim, to July 13, 2019, the effective date of the Veteran's 30 percent disability rating. The Veteran seeks a higher rating prior to July 13, 2019. As discussed above, this is the only period currently on appeal before the Board. The Veteran asserted that throughout the pendency of his appeal, his private records and statements note that he had flare-ups of the cervical spine. See Hearing Transcript dated August 2019. He had periods where he would have to go for treatment and therapy because he had decreased range of motion, increased pain, and this had been happening for a substantial period of time. He contended that an increase was warranted because the VA examinations in May and July 2019 showed that with repetitive use and flare-ups, he had a decreased range of motion that affected him during occupational functioning and in all areas of his life. He reported experiencing flare-ups at least four to five days a week, which equated to about 20 days out of the month. When he experienced a flare-up, he was incapacitated, causing him to stop and quit whatever he was doing. He used a TENS unit in the past, which worked on and off. He used an electric heating pad and a microwave heating pad. He provided that part of the reason he worked from home at least two days a week was to allow him to be able to utilize his heating pad without trying to do it at work. He had neck surgery in July 2019, which caused his flare-ups to not be as radiant as they were before. Intervertebral disc syndrome (IVDS), (preoperatively or postoperatively) can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, degenerative arthritis of the spine 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: A 10 percent rating contemplates 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 contemplates 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 contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: 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 contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The Veteran was afforded a neck examination in December 2012. He endorsed flare-ups. However, the examination does not include an estimate of ranges of motion during flare-ups. Therefore, it is inadequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In March 2019, the Veteran was afforded another VA neck examination. Initial range of motion studies showed forward flexion, extension, right lateral flexion, and left lateral flexion to 45 degrees and right and left lateral rotation to 60 degrees. The Veteran was able to complete repetitive use testing without additional functional loss or loss of range of motion. The VA examiner did not provide estimates for repeated use over time or flare-ups. The Veteran had not been prescribed bed rest for his intervertebral disc syndrome. He had tenderness, guarding, or muscle spasms of the neck. However, this did not result in abnormal gait or abnormal spinal contour. In May 2019, the Veteran underwent another VA neck examination. The Veteran endorsed flare-ups. He was no longer able to sit or drive for long periods of time. Initial range of motion studies showed forward flexion, extension, right lateral flexion, and left lateral flexion to 30 degrees and right and left lateral rotation to 50 degrees. After repetitive use testing the Veteran demonstrated forward flexion, extension, right lateral flexion, left lateral flexion to 25 degrees and right and left lateral rotation to 45 degrees. With repeated use over time, the VA examiner estimated that the Veteran would have forward flexion, extension, right lateral flexion, and left lateral flexion to 20 degrees and right and left lateral rotation to 40 degrees. Finally, during flare-ups, the VA examiner estimated that the Veteran would have forward flexion, extension, right lateral flexion, left lateral flexion to 15 degrees and right and left lateral rotation to 35 degrees. The Veteran did not have intervertebral disc syndrome. The Veteran has reported flare-ups throughout the appeal period. The Board finds these statements to be competent and credible. Furthermore, the only adequate VA examination for the period on appeal is the May 2019 VA examination. The other examinations of record do not provide range of motion estimates for flare-ups and as a result do not reflect the Veteran's disability picture for the period on appeal. During flare-ups the Veteran's forward flexion of the neck was limited to 15 degrees. Therefore, the persuasive weight of the evidence indicates that the Veteran is entitled to a 30 percent evaluation for his cervical disability for the period on appeal. However, the persuasive weight of the evidence is against an evaluation greater than 30 percent for the Veteran's cervical spine disability. The Veteran did not appeal the Board's denial of an evaluation in excess of 30 percent for his cervical spine disability since July 13, 2019. There is no lay or medical evidence of record that demonstrates unfavorable ankylosis of the entire cervical spine. A 30 percent evaluation for the Veteran's cervical spine disability from June 11, 2012, to July 13, 2019, is granted. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5010-5242. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.