Citation Nr: 24012016
Decision Date: 03/14/24	Archive Date: 03/14/24

DOCKET NO. 20-30 606
DATE: March 14, 2024

ORDER

Entitlement to an evaluation in excess of 20 percent for service-connected intervertebral disc syndrome (IVDS) of the cervical spine is denied.

FINDING OF FACT

The competent and credible evidence of record persuasively establishes a finding that the service-connected IVDS of the cervical spine manifested as forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees.

CONCLUSION OF LAW

The criteria for entitlement to an evaluation in excess of 20 percent for service-connected IVDS of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5293-5290.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1978 to June 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO).

The Veteran filed a claim of entitlement to a total disability rating based on individual unemployability (TDIU), which the RO evidently interpreted as to include an increased rating claim for the service-connected cervical spine. In March 2013, the Veteran submitted a supplemental claim requesting an increased rating for the cervical spine. These issues were denied in the April 2014 rating decision on appeal, for which the Veteran filed a Notice of Disagreement (NOD). While the RO issued a Statement of the Case (SOC) for the other issues, they neglected to consider the Veteran's cervical spine claim. A September 2018 Board decision remanded the cervical spine claim and ordered that the RO provide the Veteran with a SOC. In a November 2020 SOC, the RO continued their previous denial for the Veteran's claim, and the Veteran successfully appealed the issue to the Board that same month. This issue is now before the Board for appellate review.

The Board notes that typically, a claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran's combined disability rating has been 100 percent since May 11, 2017. The TDIU claim continued on appeal through a series of concurrent Board remands, before a November 2021 decision denied the claim of entitlement to a TDIU prior to May 11, 2017, and to Special Monthly Compensation at the housebound rate thereafter. As the claims of entitlement to an increased rating for the service-connected cervical disability, and a TDIU stem from the same rating decision, this period has already been adjudicated in a final Board decision, which may not be disturbed at this time. Accordingly, the Board finds that a claim for a TDIU was not reasonably raised by the record.

Entitlement to an increased rating for service-connected cervical spine

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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.

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 any 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).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509. 

Here, as expressed above, the Veteran's claim originated in January 2013. Accordingly, the Board will consider evidence from January 2012 through the present.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.

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).

The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula).  38 C.F.R. § 4.71a, DC 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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.

The Veteran's cervical disability is rated under DC 5293-5290. The Board notes, however, that this DC has not existed since September 26, 2003.

As relevant to the cervical spine, the Spinal Formula provides for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees, or a 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned unfavorable ankylosis of the entire cervical spine. And a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.

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. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. The normal combined range of motion of the cervical spine is 340 degrees and 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.

Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension. Fixation of a spinal segment at zero degrees is considered favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Chavis v. McDonough, 34 Vet. App. 1 (2021).

Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.?38?C.F.R. §?4.71a, DC 5243. 

During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. DC 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. DC 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under DC 5242.

Regarding the use of the earlier and current criteria for evaluating the Veteran's cervical disability, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi,341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski,1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Thus, the Board will evaluate this claim under both versions of the regulation and apply whichever is more favorable.

Evidence

The Veteran underwent a VA examination in October 2023 where he reported left neck pain which would come and go, and was worse with vibration, for example while driving. He endorsed flareups, which manifested as increased stiffness and pain, and significantly limited functional ability when the cervical spine was used repeatedly over a period of time. Initial range of motion testing demonstrated forward flexion to 45 degrees, extension to 30 degrees, bilateral flexion to 45 degrees each, and bilateral rotation to 80 degrees, for a combined range of motion of 325 degrees. The Veteran was able to perform repetitive use testing without any additional loss. The examiner opined that during flareups, range of motion testing would demonstrate forward flexion to 20 degrees, and extension, bilateral flexion, and bilateral rotation to 15 degrees each for a combined range of motion of 95 degrees. There was no guarding or muscle spasm. The examiner indicated that there was no IVDS, or any incapacitating episodes. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner opined that functional impact would include pain while looking up or sitting for more than 30 minutes.

In a May 2014 statement, the Veteran asserted that he had sharp pain in the neck everyday while working that never subsided, and was found mostly on the left. In a second May 2014 statement, he alleged that his cervical spine disability limited his work capacity.

The Veteran underwent another VA examination in January 2017 where he reported jolting, stabbing neck pain, which was worse while lying flat, and had neck grinding. He endorsed flareups, with frequent exacerbations which required rest, but denied any functional loss. Initial range of motion testing demonstrated forward flexion to 40 degrees, extension to 0 degrees, bilateral flexion to 20 degrees each, and bilateral rotation to 60 degrees each, with a combined range of motion of 200 degrees. The Veteran was able to perform repetitive use testing without any additional loss. He was not examined immediately after repeated use over time, or during a flareup, but the examiner declined to opine on the severity of the condition during such times as it would be mere speculation. There was no guarding, muscle spasm, or ankylosis. The examiner indicated IVDS without any episodes of physician prescribed bed rest. They opined that there would be no functional impact. 

The Veteran underwent another VA examination in October 2020 where he reported that the condition had worsened, and he experienced neck cracking, which was worse when bending the neck to the left as his muscles seemed to lock up. He stated that laying with his right arm above his head relieved pain at neck. The Veteran indicated that he had previously taken pain medication, but no longer did because he did not want to become dependent on it, and instead did physical therapy and a TENS unit. He endorsed flareups, exacerbated during lifting or heavy lifting, with increased pain in the left neck that lasted for several days. The Veteran stated that he also woke up some days with stiffness and increased pain. He endorsed functional loss to include difficulty lifting things with the left arm, and that he could not exercise due to pain.

Initial range of passive and active motion testing demonstrated forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, and bilateral rotation to 40 degrees each, for a combined range of motion of 170 degrees. There was pain on all motions which caused functional loss, as well as pain with weight-bearing. The Veteran was able to perform repetitive use testing, without any additional functional loss. He was not examined immediately after repeated use over time, or during a flareup, but the examiner opined that pain and weakness would significantly limit functional loss, and functional loss would demonstrate forward flexion to 20 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 0 degrees, and bilateral rotation to 30 degrees each, for a combined range of motion of 110 degrees. There was muscle spasm which did not result in abnormal gait or spinal contour, but no guarding or ankylosis. There was IVDS, but no physician prescribed bed rest. The examiner opined that the functional impact would prohibit any job that required repetitive activity, turning of the head, or lifting requiring the use of both arms.

Analysis

The Board finds that based on the aforementioned, the Veteran is already adequately compensated with a 20 percent evaluation for service-connected IVDS of the cervical spine based on forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. At no point during the appeal period was there any indication that forward flexion would be limited to 15 degrees or less, or that there was any favorable or unfavorable ankylosis. The Board acknowledges that the October 2013 and January 2017 VA examinations did not adequately address the severity of the condition following repeated use over time or during flareups, so the Board will afford the Veteran the benefit of the doubt and apply the findings of the October 2020 examination to the entire appeal period. Nonetheless, the evidence is not there to support a higher rating.

An even higher 30 percent evaluation is not warranted as there is no evidence of favorable ankylosis of the cervical spine. Similarly, an even 40 percent evaluation is not warranted as there is no evidence of unfavorable ankylosis of the entire cervical spine. 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. 38 C.F.R. § 4.71a, DCs 5235-5242 at Note (5). The Board acknowledges the Veteran's description of his disability; however, the Board does not find that the severity of the cervical disability is the functional equivalent of the Veteran's thoracolumbar spine being in a fixed position with the additional, debilitating symptoms that are required to accompany unfavorable ankylosis as contemplated by the rating criteria. Further, even considering the Veteran's use of medication and other treatment, the Veteran has not described, and the record does not show that there would be the functional equivalent of ankylosis.

Additionally, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran has reported that he took pain medication and used physical therapy and a TENS unit as needed to treat his cervical symptoms. However, these statements do not demonstrate that without the medication, that there would be any ankylosis of the cervical spine. Thus, the Board finds that higher ratings based on ankylosis are not supported or warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, 5010-5238.

Additionally, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206. Despite the Veteran's complaints, pain did not result in unfavorable ankylosis of the spine at any time during the period on appeal. See Chavis, 34 Vet. App. 1. In this regard, VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted during the entire appeal period for the Veteran's back disability even in consideration of painful motion and other factors.

Consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes; however, there is no evidence of any physician prescribed bed rest during the appeal period.

The Board is sympathetic to the Veteran's lay statements that the disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating.

Accordingly, the criteria for the claim of entitlement to an evaluation in excess of 20 percent for the service-connected cervical disability have not been met, and the appeal is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt. This rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in approximate balance. It is only when the weight of the evidence is against the claim that the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, 21 F.4th 776 (2021). Here, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Lynch, 21 F.4th 776.

 

 

Thomas English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rogos

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.