Citation Nr: 22053343 Decision Date: 09/20/22 Archive Date: 09/20/22 DOCKET NO. 18-47 075 DATE: September 20, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for spondylosis of the cervical spine, C5-6, is denied. FINDING OF FACT The Veteran's cervical spine disability is manifested by forward flexion to 40 degrees and combined range of motion of the cervical spine of 220 degrees, at worst. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1982 to August 1986 and from January 1987 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the Veteran's cervical spine disability and assigned an initial 10 percent rating effective March 19, 2009. In December 2021, the Veteran testified at a virtual hearing before the undersigned; a transcript is of record. The appeal was previously before the Board in January 2022, when it was remanded for further development. In a June 2022 rating decision since issued, the RO granted a temporary total evaluation for the Veteran's neck disability based on surgical or other treatment necessitating convalescence from July 22, 2020 to September 30, 2020. However, the claim for a higher initial rating for a neck disability for the remainder of the appellate period remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The rating decision also granted service connection for radiculopathy of the left upper extremity, rated as 20 percent disabling effective June 11, 2020, and neck scars, rated 0 percent disabling effective July 22, 2020. As the Veteran did not disagree with the ratings or effective dates assigned, neither disability is found to be on appeal and will not be discussed in the instant decision. Entitlement to an initial rating in excess of 10 percent for spondylosis of the cervical spine, C5-6 The Veteran contends that he is entitled to a higher rating due to the severity of his symptoms. The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. 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 weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite 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. The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for spondylolysis of the cervical spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limitation of motion. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board also notes that favorable ankylosis of the entire cervical spine (or its functional equivalent) is not present. Specifically, on January 2010 VA examination, the Veteran was able to perform range of motion testing with three repetitions. Range of motion measurements were flexion to 45 degrees, extension to 45 degrees, right and left lateral flexion to 40 degrees, and right and left lateral rotation to 70 degrees. There was no evidence of pain on motion or tenderness. On May 2022 VA examination, the Veteran reported moderate-to-severe neck flareups precipitated by physical movement and alleviated by medication. He stated the flareups occurred daily and lasted an entire day. Active range of motion testing reflected forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, right lateral rotation to 65 degrees, and left lateral rotation to 55 degrees. Pain was exhibited on all ranges of motion other than forward flexion. Passive range of motion testing was not conducted on the basis that it could cause the Veteran severe pain or further injury. Pain on active motion that did not result in or cause functional loss was noted, as was moderate paraspinal tenderness to palpation. The Veteran was able to perform three repetitions with range of motion measurements of forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 80 degrees. The examiner noted that pain and weakness caused the additional functional loss. The examiner did not examine the Veteran ater repeated use over time, but provided estimate range of motion measurements for repeated use over time based on relevant information, including the Veteran's lay statements. The estimates were as follows: forward flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, right lateral rotation to 65 degrees, and left lateral rotation to 55 degrees. The examiner also provided estimates of range of motion during a flareup as forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 25 degrees, left lateral flexion to 10 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 50 degrees. Considering the VA examinations and a review of the Veteran's medical records, his cervical spine disability manifested as forward flexion to 40 degrees and combined range of motion of the cervical spine of 220 degrees, at worst. Therefore, it does not result in limitation of motion more nearly approximating the criteria for a higher 20 percent rating, specifically forward flexion of 15 degrees but not greater than 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees. Also, VA examination did not show ankylosis of the entire cervical spine or the functional equivalent of ankylosis of the entire cervical spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for his cervical spine disability 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. Regarding neurological impairment, as noted in the introduction, the Veteran has already been granted service connection for radiculopathy of the left upper extremity, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for an initial rating in excess of 10 percent spondylolysis of the cervical spine. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.