DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, who served from May 1974 to September 1998, appeals the denial of increased ratings for his cervical spine condition. The Board previously remanded the case twice for additional development. The Veteran sought an increased rating for degenerative arthritis of the cervical spine, claiming it worsened significantly between 2014 and 2015. The Board reviewed evidence including multiple MRIs, VA examinations, private treatment records, and the Veteran's testimony. The Board found that the evidence was in equipoise regarding a 20 percent rating as of June 4, 2015, granting a 20 percent rating for that period, noting the evidence showed worsening from 2014 to 2015. However, the Board found the evidence against higher ratings for subsequent periods. Specifically, the evidence did not support a rating in excess of 20 percent from July 27, 2018, to January 4, 2021, nor a rating in excess of 10 percent as of January 5, 2021. The Board noted that while the Veteran's condition worsened, it did not meet the criteria for higher ratings based on limited range of motion or ankylosis. The benefit of the doubt doctrine was not applied as the preponderance of the evidence was against the higher ratings.

Rationale

Weight of evidence against rating in excess of 20 percent; Did not meet criteria for 30 percent rating (favorable ankylosis or flexion <= 15 degrees)

Full Decision Text

Citation Nr: 21017392
Decision Date: 03/25/21	Archive Date: 03/25/21

DOCKET NO. 15-01 169
DATE: March 25, 2021

ORDER

A rating of 20 percent, but no higher, for degenerative arthritis of the cervical spine as of June 4, 2015, is granted.

A rating in excess of 20 percent for degenerative arthritis of the cervical spine from July 27, 2018, to January 4, 2021, is denied.

A rating in excess of 10 percent for degenerative arthritis of the cervical spine as of January 5, 2021 is denied.

FINDINGS OF FACT

1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s cervical spine disability more closely approximated the rating for forward flexion of the cervical spine to 30 degrees or less as of June 4, 2015.

2. The weight of the competent and probative evidence is against finding a rating in excess of 20 percent is warranted from July 27, 2018 to January 4, 2021, or at any time during the period on appeal.

3. The weight of the competent and probative evidence is against finding a rating in excess of 10 percent is warranted as of January 5, 2021.

CONCLUSIONS OF LAW

1. As of June 4, 2015, the criteria for a rating of 20 percent for the cervical spine disability, and no higher, are met.   38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242.

2. The criteria for a rating in excess of 20 percent for the cervical spine disability from July 27, 2018, to January 4, 2021, are not met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242.

3. The criteria for a rating in excess of 10 percent for the cervical spine disability, as of January 5, 2021, are not met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1974 to September 1998.

This matter comes to the Board of Veterans’ Appeals on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was before the Board and remanded for additional development in November 2018 and November 2020.  There has been substantial compliance with remand directives and additional remands are not warranted.  See Stegall v. West, 11 Vet. App. 268 (1998).

In July 2020, the RO issued a rating decision increasing the rating for the Veteran’s cervical spine from 10 percent to 20 percent effective July 27, 2018, based on an August 2019 VA examination.  Notwithstanding the grant of an increased rating, the Veteran argued that the August 2019 VA examination was inadequate, and the matter was remanded for a new examination.  After a January 2021 VA examination, the RO issued a January 2021 rating decision decreasing the rating for the Veteran’s cervical spine from 10 percent to 20 percent effective January 5, 2021.  The due process requirements of 38 C.F.R. § 3.105(e) do not apply to the January 2021 reduction because the reduction did not reduce the compensation payments currently being made.  The Veteran’s combined evaluation for compensation remained at 90 percent after the reduction. 

The Veteran testified at a Board hearing in July 2018.  A copy of the hearing transcript is associated with the claims file and has been reviewed.

Increased ratings

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for
 VA examination, the RO issued a January 2021 rating decision decreasing the rating for the Veteran’s cervical spine from 10 percent to 20 percent effective January 5, 2021.  The due process requirements of 38 C.F.R. § 3.105(e) do not apply to the January 2021 reduction because the reduction did not reduce the compensation payments currently being made.  The Veteran’s combined evaluation for compensation remained at 90 percent after the reduction. 

The Veteran testified at a Board hearing in July 2018.  A copy of the hearing transcript is associated with the claims file and has been reviewed.

Increased ratings

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  All regulations that are potentially applicable must be acknowledged and considered.  Schafrath, 1 Vet. App. at 593.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment.  38 C.F.R. §§ 4.40, 4.45.  The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59.

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The Veteran is competent to report symptoms and experiences he can observe.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102.

Ratings applicable to the cervical spine

The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc
. 2007); 38 C.F.R. § 3.159(a).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102.

Ratings applicable to the cervical spine

The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  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.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral 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 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.

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.

Note (5):  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.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sac
 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.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome

For intervertebral disc syndrome, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

1. A rating in excess of 10 percent prior to July 27, 2018

2. A rating in excess of 20 percent from July 27, 2018 to January 4, 2021

The Veteran underwent a VA examination in August 2014.  He reported progressive pain and stiffness.  The Veteran achieved flexion to 35 degrees with end of range pain; extension to 35 degrees with end of range pain; right and left lateral flexion to 35 degrees with end of range pain; and, right and left lateral rotation to 65 degrees with end of range pain.  There was no additional loss of motion following repetitive use testing. There was localized tenderness to palpation.  The examiner determined it to be speculative to estimate any loss of range of motion during a flare or after repetitive use over time.  See August 12, 2014, VA Examination.  

A September 25, 2014 MRI showed broad-based bulging of the disc at C3-C4 through C6-C7, mild stenosis of the spinal canal and lateral recesses at C3-C4 through C6-C7 and mild stenosis of the neural foramina at C5-C6 and C6-C7.  See October 29, 2014, Medical Treatment Record – Non-Government.

VA treatment records show that the Veteran reported his cervical pain worsening in May 2015.  A June 2015 MRI showed multilevel spondylosis and degenerative disc disease. There was evidence of broad-based bulging of the disc at C3-C4 through C5-C6; central disc herniation at C6-C7 and C7-T1; mild stenosis of the spinal canal and lateral recesses at C4-C5 through C6-C7; severe stenosis of the neural foramina at C3-C4 and C6-C7; and, mild stenosis of neural foramina at C5-C6.  See September 2, 2015, Medical Treatment Record – Non-Government.

A private treatment letter from November 2014, noted that the Veteran’s cervical pain was causing a lack of sleep and problems with turning his head while driving.  See December 9, 2014, Medical Treatment Record – Non-Government.  A final MRI was conducted in May 2018.  It showed a central disc herniation at C3-C4, broad-based disc bulge at C4-C5 through C6-C7
 C6-C7; severe stenosis of the neural foramina at C3-C4 and C6-C7; and, mild stenosis of neural foramina at C5-C6.  See September 2, 2015, Medical Treatment Record – Non-Government.

A private treatment letter from November 2014, noted that the Veteran’s cervical pain was causing a lack of sleep and problems with turning his head while driving.  See December 9, 2014, Medical Treatment Record – Non-Government.  A final MRI was conducted in May 2018.  It showed a central disc herniation at C3-C4, broad-based disc bulge at C4-C5 through C6-C7, and no stenosis of the spinal canal.  See July 10, 2018, Medical Treatment Record – Non-Government.

The Veteran testified in July 2018 that his cervical pain was getting progressively worse.  The Veteran endorsed problems doing household chores and driving.  He complained of headaches, loss of sleep, inability to mow the grass and difficulty tying his shoes.  See July 10, 2018, Hearing Transcript.  After the hearing, the Veteran submitted a letter from his private physician emphasizing the deterioration of the cervical spine from the September 2014 MRI to the June 2015 MRI.  The physician further explained that the Veteran’s neck becomes left-sided, impairing his driving ability and causing constant neck pain and stiffness, sleep disturbance, work absenteeism, and limited capability to perform daily chores.  See August 29, 2018, Medical Treatment Record – Non-Government.

After examining the evidence of record and applying the laws and regulations above, the competent and probative evidence is at least in equipoise as to whether the Veteran’s cervical spine condition more closely approximated a 20 percent evaluation as of June 4, 2015.  In the July 2020 rating decision, the RO advised they were unable to locate the September 2014 MRI in the claims file and were unclear whether the 2015 or 2018 MRIs established worsening conditions.  The September 2014 MRI is present in the claims file and, by comparison, establishes that the Veteran’s cervical spine conditioned worsened significantly by June 2015 as indicated in the July 2018 private treatment letter.  June 2015 is the first evidence of multilevel disc herniation and severe stenosis throughout the cervical spine.  In additional, VA treatment records demonstrate that the Veteran began to complain of worsening cervical pain in May 2015.  At an August 2019 VA examination, forward flexion was limited to 30 degrees, extension was limited to 30 degrees, right and left lateral flexion was limited to 30 degrees and right and left lateral rotation were limited to 60 degrees.  A 20 percent evaluation is warranted for forward flexion not greater than 30 degrees.      

The competent and probative evidence is against a rating in excess of 20 percent is warranted at any time during the period on appeal.  A higher evaluation of 30 percent is not warranted for the cervical spine as the evidence does not demonstrate favorable ankylosis of the entire cervical spine or that the Veteran’s forward flexion of the cervical spine was limited to 15 degrees or less at any time during the period on appeal.

3. A rating in excess of 10 percent as of January 5, 2021

As of January 5, 2021, the weight of the competent and probative evidence is against a rating in excess of 10 percent is warranted.

The Veteran was afforded another VA examination in January 2021.  The Veteran explained that his activities were limited by neck stiffness and pain.  He described difficulty driving, sleeping, and completing household chores due to pain.  The Veteran achieved flexion to 40 degrees; extension to 40 degrees; right and left lateral flexion to 40 degrees; and, right and left lateral rotation to 70 degrees.  The combined range of motion for the cervical spine was 230 degrees.  Pain was noted on examination but did not result in functional loss.  There was evidence of pain with weight bearing and evidence of localized tenderness to palpation.  There was no additional loss of motion following repetitive use testing.  The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or with flare ups.  Guarding and muscle spasm were present but did not result in abnormal gait or abnormal spinal contour.  There was no ankylosis, atrophy or other significant findings.  See January 12, 2021, VA Examination.

A higher evaluation of 20 percent is not warranted as the evidence does not demonstrate that the Veteran’s forward flexion was
 examination but did not result in functional loss.  There was evidence of pain with weight bearing and evidence of localized tenderness to palpation.  There was no additional loss of motion following repetitive use testing.  The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or with flare ups.  Guarding and muscle spasm were present but did not result in abnormal gait or abnormal spinal contour.  There was no ankylosis, atrophy or other significant findings.  See January 12, 2021, VA Examination.

A higher evaluation of 20 percent is not warranted as the evidence does not demonstrate that the Veteran’s forward flexion was not greater than 30 degrees or the combined range of motion of the cervical spine was not greater than 170 degrees.  In addition, the July 2018 MRI demonstrated an improvement in the cervical spine condition from June 2015.  For the first time, there was no evidence of stenosis in the cervical spine.  The preponderance of the evidence is against finding a rating in excess of 10 percent is warranted as of January 5, 2021.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See Gilbert, 1 Vet. App at 49. 

(Continued on next page)

 

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  

Changes, however, were not made that have any effect on the rating for the Veteran’s cervical spine disability.

 

 

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Monica Ball Jackson, Associate 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.