Citation Nr: 18124039
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-41 403A
DATE:	August 3, 2018
ORDER
Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine (cervical spine DDD) is denied for the period from October 29, 2012 to October 1, 2014.
Entitlement to an increased rating of 20 percent, but no more, for cervical spine DDD is granted from October 2, 2014 to February 15, 2018.
Entitlement to an increased rating in excess of 30 percent for cervical spine DDD from February 16, 2018 forward is denied.
FINDINGS OF FACT
1.  For the period from October 29, 2012 to October 1, 2014, the Veteran’s cervical spine DDD manifested in forward flexion functionally limited to no less than 45 degrees, with combined range of motion (ROM) functionally limited to no less than 330 degrees. 
2.  For the period from October 2, 2012 to February 15, 2018, the Veteran’s cervical spine DDD manifested in forward flexion functionally limited to no less than 30 degrees and combined ROM functionally limited to no less than 190 degrees.
3.  For the period from February 16, 2018 forward, the Veteran’s cervical spine DDD manifested in forward flexion of less than 15 degrees, without ankylosis.   
4.  For the entire appeal period, the objective evidence of record shows no occurrence of incapacitating episodes or other related neurological abnormalities stemming from intervertebral disc disease (IVDS).
CONCLUSIONS OF LAW
1. The criteria for entitlement to a rating in excess of 10 percent for cervical spine DDD have not been met for the period from October 29, 2012 to October 1, 2014. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2017). 
2. The criteria for entitlement to a rating of 20 percent, but no more, for cervical spine DDD have been met for the period from October 2, 2012 to February 15, 2018.  38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2017). 
3.  The criteria for a rating in excess of 30 for cervical spine DDD beginning February 16, 2018 have not been met.  38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Entitlement to a rating in excess of 10 percent for cervical spine DDD for the period from October 29, 2012 to October 1, 2014.
2. Entitlement to a rating in excess of 10 percent for cervical spine DDD for the period from October 2, 2014 to February 15, 2018.
3. Entitlement to a rating in excess of 30 percent for cervical spine DDD for the period from February 16, 2018 forward.
The Veteran applied for Department of Veterans Affairs (VA) disability benefits in September 1997, immediately after discharge from active service, and in July 1998 was awarded service connection for a disability of the cervical and thoracic spine, evaluated at 10 percent disabling.  X-rays taken in March 2007 revealed degenerative disc disease (DDD) in the cervical spine.  In October 2012 the Veteran applied for an increased rating for his cervical spine DDD.  Based largely on the Veteran’s range of motion (ROM) as measured in an August 2013 VA cervical spine examination, in September 2013 a VA regional office (RO) denied the requested increase.  The Veteran appealed.
The RO confirmed and continued that evaluation in October 2014, but after further testing raised it to 30 percent as of February 2018.  The appeal now reaches the Board of Veterans’ Appeals (Board), which must decide whether the Veteran was entitled to a rating higher than 10 percent at any point between his October 2012 application and the February 2018 increase to 30 percent, and whether the Veteran was entitled to a rating higher than 30 percent after February 2018.  
Applicable law
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  
The effective date of an award of increased compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later, unless the increase in disability is factually ascertainable within one year prior to the receipt of the claim for increased compensation. 38 U.S.C. § 5110 (2012); 38 C.F.R. 3.400 (2017). Separate ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
A cervical spine disability may be rated on limitation of motion, which requires adequate consideration of functional loss due to pain, weakness, fatigability, incoordination or pain on movement. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain in and of itself does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 24 Vet. App. 32 (2011).  Where intravertebral disc disease (IVDS) is present, it may also be rated based the frequency of incapacitating episodes attributable to that ailment.
The Veteran’s cervical spine DDD is evaluated pursuant to VA’s General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specifically DC 5242, degenerative arthritis of the spine.  Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply:  
A 10 percent rating is assigned 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 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 rating is assigned 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 assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242 (2017).  
For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees, extension is to 45 degrees, left and right lateral flexion are to 45 degrees and left and right lateral rotation are to 80 degrees. The combined range of motion refers to the sum 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. 38 C.F.R. § 4.71a, Plate 5 (2017).
Analysis
At his August 2013 VA cervical spine examination the Veteran demonstrated full forward flexion and extension of 45 degrees (albeit with pain starting at that point); full right lateral flexion to 45 degrees with no pain; left lateral flexion limited by pain to 40 degrees; right lateral rotation ended by pain at 75 degrees; and full left lateral rotation to 80 degrees without pain.  The total ROM was 330 degrees, a small decline from the normal 340 degrees.  There was no change on three repetitions, and no additional limitations to joint function due to pain, fatigue, weakness, lack of endurance, or incoordination with use or with flare-ups. Thus, on this examination the Veteran’s ROM was considerably in excess of the limitation necessary for a rating of 20 percent or higher, and the RO continued the Veteran’s 10 percent rating.
In his October 2013 notice of disagreement, the Veteran described increasing pain and discomfort such that he was unable to efficiently perform his job requirements, including impairments in standing, walking, typing in a sitting position, or flying many hours as required to reach job sites in Asia.  He also noted that his neck pain had spread to his shoulders and his left shoulder blade.
After receiving additional information concerning the Veteran’s progressively worsening condition, the RO scheduled another cervical spine examination, which the Veteran underwent in October 2014.  The Veteran’s ROM showed marked deterioration.  
Forward flexion and extension were limited by pain to 35 degrees; right lateral flexion was limited by pain to 30 degrees; left lateral flexion was limited by pain to 20 degrees; right lateral rotation was limited by pain to 30 degrees; and left lateral rotation was limited by pain to 40 degrees.  The combined ROM was 190 degrees.  After three repetitions there was no change in ROM, and no additional limitations to joint function due to fatigue, weakness, lack of endurance, or incoordination.  The examiner briefly opined that because there was no change in ROM with three repetitions, the Veteran’s cervical spine degenerative disc disease was less likely as not to affect his functional ability during flare-ups or repeated motions over a period of time.  The examiner further noted that the Veteran’s disability did not affect his ability to work.
Though more limited than before, the ROM measurements recorded in the October 2014 examination remained in excess of the limitations required for a 20 percent evaluation.  The Board notes, however, that the examiner’s abbreviated evaluation of the potential effect of flare-ups is insufficient to satisfy the requirements of the Court of Appeals for Veterans Claims’ decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) requiring examiners to explore the effects of flare-up on functional impairment, approximate them in terms of lost ROM, and seek that information from multiple sources including the Veteran. The Board also notes that, contrary to the examiner’s opinion, the evidence of record suggests that that the Veteran’s cervical spine disability did interfere with his work, such that he was forced to retire.  
In the Veteran’s February 2015 substantive appeal to the Board, the Veteran explained that the pain of his disability resulted in an inability to sit through the travel necessary for his work for the Army as a civilian in foreign counterintelligence; in February 2013 he had been relieved of trans-Pacific travel and in January 2014 from all temporary duty travel.  Although assigned to light administrative work, the Veteran describes sitting at a computer terminal as exacerbating his cervical pain such that he could not sit for more than 10 minutes.  He notes being woken up at night and being unable to turn his neck to the right while driving to assess traffic for lane changes.  He notes having missed more than 40 days of work between November 2013 and November 2014 because of his service-connected spine disabilities.
The Board finds the Veteran to be a competent and credible reporter, in that his arguments for a higher rating are consistent and in accord with the medical evidence, and further confirmed by two memoranda to the VA from the US Army Foreign Counterintelligence Activity.  A June 2014 memorandum indicates that in July 2013 the Veteran was relieved of trans-Pacific travel for health reasons.  A November 2014 memorandum indicates that the Veteran’s worsening spine- and neck-related physical condition required relieving him of his normal duties including both long plane rides and strenuous walking upon arrival on the ground; the memorandum indicates that the Veteran had been placed on alternate duties and would be retiring in April 2015.  Further, acupuncture treatment records document the Veteran’s reports of neck pain exacerbated by sitting, standing and driving for long periods, as well as “frequent” flare-ups.
In light of the significant decrease in ROM measured in the October 2014 examination; the failure of the October 2014 examiner to investigate the Veteran’s functional loss on flare-up; and the documented pain and inadequate functioning of the Veteran’s cervical spine during conditions of work, the Board finds that the level of disability of the Veteran’s cervical spine is best approximated by a 20 percent rating from October 2, 2014, the date of examination, to February 15, 2018, beyond which the Veteran is rated as 30 percent disabled.  The Board finds no evidence of record providing an ROM measurement or other factual basis that would indicate entitlement to an increased rating prior to October 2, 2014.  
On February 16, 2018 the Veteran underwent a VA cervical spine examination to determine the current level of the Veteran’s disability.  The Veteran’s ROM had further diminished; his forward flexion was limited to 10 percent.  As a 30 percent disability rating is warranted where forward flexion is 15 degrees or less, the Veteran was awarded a 30 percent rating as of the date of the examination.  The Board finds no evidence of record of an ROM measurement or other factual basis that would warrant an earlier 30 percent rating. 
The Veteran’s representative has suggested a rating in excess of 30 percent is warranted from February 16, 2018; however, any schedular cervical spine disability rating in excess of 30 percent requires the presence of ankylosis, which the Veteran does not have.  Accordingly, the Board finds that the Veteran’s disability evaluation of 30 percent as of February 16, 2018, the date of the examination, is proper.
As noted earlier, in his October 2013 notice of disagreement the Veteran reported that his neck pain had spread to his shoulders and his left shoulder blade.  The Board notes that in September 2014 the RO granted service connection for left upper radiculopathy as secondary to the Veteran’s service-connected cervical spine DDD. Because the Veteran has been assigned a disability rating for upper radiculopathy, the Board finds that an additional separate rating for that disability is not warranted. 
IVDS
The October 2014 examination also noted a diagnosis of IVDS, which may be rated under the General Rating Formula or by the frequency of incapacitating events attributable to the ailment, whichever yields the higher rating.  The examiner reported that the Veteran had had incapacitating episodes with a total duration of at least six weeks during the prior 12 months.  She offered no further explanation or description of the incapacity.  
However, in his substantive appeal to Board, the Veteran explained that between November 2013 and November 2014 he had missed more than 40 days of work because of his service-connected spine disabilities, for some part of which he had to lie down to relieve pain, and that he would be “incapacitated” for two or three days at a time.  He noted that he used VA-prescribed medications and equipment for pain reduction, and felt he was under the care of a VA doctor.  
Under this method of rating, however, the definition of “incapacitating episode” is more specific: “a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71(a), Formula for Rating Intravertebral Disc Syndrome, Note 1.  The Board finds no convincing evidence in the record that the October 2014 examiner was cognizant of this definition when reporting the Veteran’s incapacitating episodes, nor of a doctor explicitly prescribing bed rest for treatment of the Veteran’s IVDS.  Accordingly, the Board finds that the Veteran’s cervical spine disability is more advantageously evaluated as above under the General Rating Formula.
 
Thomas H. O'Shay
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David S. Katz, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.