DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the Army from April 2005 to September 2005, July 2006 to October 2007, and September 2010 to October 2011, appeals the denial of increased disability ratings for his service-connected degenerative arthritis of the cervical spine. The veteran sought ratings higher than 10 percent prior to October 28, 2019, higher than 20 percent from October 28, 2019, through June 14, 2021, and higher than 30 percent since June 15, 2021. The Board reviewed multiple VA orthopedic examinations from October 2014, October 2019, June 2021, and November 2021, along with VA outpatient treatment records and SSA disability records. The October 2014 exam showed pain on movement and mild tenderness, with forward flexion to 45 degrees. The October 2019 exam noted chronic neck pain, with forward flexion limited to 30 degrees and pain on all ranges of motion. The June 2021 exam showed forward flexion limited to 20 degrees with pain on all motion, and the November 2021 exam indicated moderate localized tenderness and forward flexion limited to 30 degrees, with pain on all motion. The Board found that while the veteran experienced pain and some functional limitations, the evidence did not meet the specific criteria for higher ratings based on limitation of motion or ankylosis in any of the periods under review. The Board noted that painful motion alone does not equate to functional loss and that the veteran's reported flare-ups, while acknowledged, did not result in the objective findings required for increased ratings. The benefit of the doubt doctrine was found not applicable as the evidence weighed against the claim. Consequently, the Board denied increased ratings for the cervical spine disability for all periods.

Rationale

Evidence did not meet criteria for higher ratings based on limitation of motion or ankylosis.; Painful motion alone does not equate to functional loss.; Flare-ups did not result in objective findings for increased ratings.

Full Decision Text

Citation Nr: 22017894
Decision Date: 03/26/22	Archive Date: 03/26/22

DOCKET NO. 14-13 923
DATE: March 26, 2022

ORDER

Entitlement to a disability rating in excess of 10 percent prior to October 28, 2019, in excess of 20 percent from October 28, 2019 through June 14, 2021, and in excess of 30 percent since June 15, 2021 for degenerative arthritis of the cervical spine is denied.

FINDINGS OF FACT

1. Prior to October 28, 2019, the Veteran's degenerative arthritis of the cervical spine resulted in forward flexion greater than 30 degrees and a combined range of motion greater than 170 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

2. From October 28, 2019 through June 14, 2021, the Veteran's degenerative arthritis of the cervical spine resulted in forward flexion greater than 15 degrees, without actual favorable or unfavorable ankylosis or the functional equivalent of ankylosis.  

3. Effective June 15, 2021, the Veteran's degenerative arthritis of the cervical spine results in at least some range of motion of the spine, without actual unfavorable ankylosis or the functional equivalent of ankylosis.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent prior to October 28, 2019, in excess of 20 percent from October 28, 2019 through June 14, 2021, and in excess of 30 percent since June 15, 2021 for degenerative arthritis of the cervical spine have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 (in effect prior to and since February 7, 2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from April 2005 to September 2005, July 2006 to October 2007, and September 2010 to October 2011. His awards include the Combat Action Badge and the Army Commendation Medal.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Veteran requested a hearing before a Decision Review Officer (DRO). An informal hearing conference with a DRO was conducted in March 2017 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims file.

In January 2018, the Board, in pertinent part, denied the claim for an increased rating for a cervical spine disability.  Subsequently, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court).  In August 2018, the Court set aside the Board's January 2018 decision, in part, and remanded to the Board the part of the January 2018 Board decision that denied the Veteran's claim for a rating in excess of 10 percent for a cervical spine disability in compliance with directives specified in an August 2018 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and VA.

The appeal of this issue was before the Board in March 2019, March 2021, and October 2021.  The Veteran's increased rating claim was on each occasion remanded for additional development.  It has now been returned to the Board. In the March 2019, March 2021, and October 2021 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain any outstanding relevant VA and private treatment records, obtain the Veteran's Social Security Administration (SSA) disability records, afford the Veteran examinations to assess the severity of his service-connected cervical spine disability, and obtain a retrospective medical opinion regarding the functional limitations of the Veteran's cervical spine disability during flare ups during the claim period prior to October 2019.

Pursuant to the Board's remands, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of August 2020 and March 2021 letters. Copies of the authorization forms (VA Forms 21-4142 and 21-414
 (AOJ) to, among other things, obtain any outstanding relevant VA and private treatment records, obtain the Veteran's Social Security Administration (SSA) disability records, afford the Veteran examinations to assess the severity of his service-connected cervical spine disability, and obtain a retrospective medical opinion regarding the functional limitations of the Veteran's cervical spine disability during flare ups during the claim period prior to October 2019.

Pursuant to the Board's remands, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of August 2020 and March 2021 letters. Copies of the authorization forms (VA Forms 21-4142 and 21-4142a) were included with the letters. Also, the Veteran's relevant SSA records and all outstanding VA treatment records were obtained and associated with the claims file, the Veteran was most recently afforded a VA examination to assess the severity of his service-connected cervical spine disability in November 2021, and retrospective medical opinions were obtained in November 2021. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 

In September 2017, the Veteran testified at a hearing before a now-retired Veterans Law Judge of the Board.  A transcript of the hearing is of record.  In January 2021 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. This letter was sent to the Veteran's address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative.  The Veteran did not respond to the September 2017 letter. Therefore, it is assumed that he does not want another hearing and the Board will proceed with adjudication of the Veteran's appeal.  

During the course of this appeal, the Veteran has been granted increased ratings for his cervical spine disability.  As the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

Entitlement to a disability rating in excess of 10 percent prior to October 28, 2019, in excess of 20 percent from October 28, 2019 through June 14, 2021, and in excess of 30 percent since June 15, 2021 for degenerative arthritis of the cervical spine

The Veteran seeks increased ratings for his service-connected degenerative arthritis of the cervical spine.  He asserts this disability has increased in severity, and increased ratings are therefore warranted.  

Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  As such, the Board will consider whether staged ratings are appropriate to the pending appeals.  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  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.  38 C.F.R. § 4.7.  

With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability.  Joints that are actually painful, unstable, or misaligned, 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; see also Mitchell v. Shinseki, 25 Vet
 disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  

With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability.  Joints that are actually painful, unstable, or misaligned, 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; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body.  Mitchell, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" may constitute functional loss).  Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  

The Veteran's cervical spine disability is rated under Diagnostic Code (DC) 5242, for degenerative arthritis.  The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. This diagnostic code was not significantly amended by the regulatory changes.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radi
 exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. This diagnostic code was not significantly amended by the regulatory changes.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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 General Rating Formula for Diseases and Injuries of the Spine provides the following, both prior to and since the regulatory change:  

Unfavorable ankylosis of the entire spine				100

Unfavorable ankylosis of the entire thoracolumbar spine		50

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							40

Forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine 							30

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, the combined range of motion of the thoracolumbar spine not greater than 120 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		20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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					10

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. 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.  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.  Fix
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.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-43.  

Spinal disabilities may also be rated under DC 5243, for intervertebral disc syndrome (IVDS).  Under the rating criteria in effect both prior to and since the regulatory change, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating.  With incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted.  With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted.  With incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted.  An "incapacitating episode" is 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. § 4.71a, Diagnostic Code 5243, Note 1.  

The Veteran's claim that was interpreted by the AOJ as including a claim for an increased rating for his service-connected cervical spine disability was received on April 22, 2014.

In response to his claim, the Veteran was afforded a VA orthopedic examination in October 2014.  He reported ongoing pain of the neck, worsening during flare-ups, but denied any treatment since his prior examination in 2012.  Range of motion of the cervical spine included forward flexion of the cervical spine to 45 degrees, with pain at 35 degrees.  Extension was to 45 degrees, with pain at 30 degrees.  Right lateral flexion was to 45 degrees with no pain, and left lateral flexion was to 45 degrees with pain at 30 degrees.  Right lateral rotation was to 80 degrees with no pain, and left lateral rotation was to 80 degrees with pain at 70 degrees.  There was no additional limitation in range of motion following repetitive use testing, but there was functional impairment of the cervical spine, in the form of pain on movement.  There was tenderness or pain on palpation of the cervical spine and muscle spasm, but there was no evidence of muscle spasm resulting in abnormal gait or abnormal spinal contour.  Muscle strength testing, reflex examination and sensory examination were all normal.  There was no evidence of radiculopathy or ankylosis of the cervical spine, and no other neurological abnormalities were noted.  In addition, there was no intervertebral disc syndrome and no report of incapacitating episodes due to the cervical spine disability.  

A VA orthopedic examination was next afforded the Veteran on October 28, 2019.  The claims file was reviewed in conjunction with the examination.  The Veteran reported chronic neck pain, especially with turning of his head.  On range of motion testing, forward flexion was to 30 degrees, extension was to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 55 degrees on the right and 50 degrees on the left.  Pain was reported with all ranges of motion, and with and without weightbearing.  Pain was also noted by the examiner on palpation of the neck.  This was described as mild tenderness on palpation of the posterior neck, but without knots or muscle spasms.  No additional limitation of motion was noted with repetitive motion.  The examiner reported pain, weakness, fatiguability, and related factors resulted in forward flexion limited to 25 degrees, extension to 20 degrees,
 range of motion testing, forward flexion was to 30 degrees, extension was to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 55 degrees on the right and 50 degrees on the left.  Pain was reported with all ranges of motion, and with and without weightbearing.  Pain was also noted by the examiner on palpation of the neck.  This was described as mild tenderness on palpation of the posterior neck, but without knots or muscle spasms.  No additional limitation of motion was noted with repetitive motion.  The examiner reported pain, weakness, fatiguability, and related factors resulted in forward flexion limited to 25 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 50 degrees on the right and 45 degrees on the left.  With flare-ups, the examiner estimated forward flexion would be further limited to 20 degrees.  No guarding or muscle spasm was observed.  Muscle strength was 5/5 at the elbows, wrists, and fingers bilaterally, and no muscle atrophy was present.  Deep tendon reflexes were within normal limits at the triceps, biceps, and brachioradialis bilaterally.  Sensory responses were also within normal limits for both upper extremities.  No radiculopathy or ankylosis were present.  However, Tinel's sign was positive at the bilateral elbows.  The examiner determined no intervertebral disc syndrome was present.  The Veteran did not require assistance devices to ambulate.  Regarding the Veteran's overall functional impairment, the examiner determined the Veteran would be unable to perform physical labor.  

The Veteran was next afforded a June 15, 2021 VA orthopedic examination of his cervical spine.  The claims file was reviewed in conjunction with the examination.  The Veteran reported daily flare-ups of moderate neck pain, preceded by physical activity and usually lasting several hours.  Rest and pain medication alleviated his symptoms.  On evaluation, the Veteran had range of motion of the cervical spine to include forward flexion to 20 degrees, extension to 20 degrees, lateral rotation to 20 degrees bilaterally, and lateral rotation to 40 degrees bilaterally.  Range of motion was the same for both passive and active motion.  Pain was reported with all motion.  The Veteran was, however, without crepitus, localized tenderness, or pain on palpation.  With repetitive motion, forward flexion was to 15 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 35 degrees bilaterally.  With repeated use over time, the examiner opined that range of motion would be further limited, with forward flexion to 10 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 30 degrees bilaterally.  During flare-ups, the examiner estimated forward flexion to 5 degrees, extension to 5 degrees, lateral flexion to 5 degrees bilaterally, and lateral rotation to 25 degrees bilaterally.  No tenderness, guarding, or muscle spasm was present.  Muscle strength was 5/5 at the elbows, wrists, and fingers bilaterally, and no muscle atrophy was present.  Reflexes of the bilateral upper extremities were also normal, and no radiculopathy, intervertebral disc syndrome, or ankylosis was present.  The Veteran did not require assistance devices.  A June 2021 x-ray confirmed mild degenerative changes of the lower cervical spine.  On the question of functional limitations resulting from the Veteran's cervical spine disability for the period from October 2011 to October 2019, the examiner opined that there was not enough medical evidence to make a statement without speculation.  Additional medical records regarding the Veteran's functional limitations during 2011 and 2019 would be needed.  

Most recently, the Veteran was afforded a VA orthopedic examination in November 2021, with a December 2021 addendum opinion.  The claims file was reviewed in conjunction with the examination.  The Veteran reported continuing pain of the neck, worsening with use.  He characterized his flare-ups as moderate in severity.  Active range of motion testing indicated forward flexion to 30 degrees, extension to 40 degrees, lateral flexion to 25 degrees bilaterally, and lateral rotation to 50 degrees on the right and 45 degrees on the left.  Pain was reported with all motion, with and without weightbearing.  Passive range of motion testing was not indicated, according to the examiner.  Repetitive motion did not result in any additional limitation of motion.  No crepitus was
2021, with a December 2021 addendum opinion.  The claims file was reviewed in conjunction with the examination.  The Veteran reported continuing pain of the neck, worsening with use.  He characterized his flare-ups as moderate in severity.  Active range of motion testing indicated forward flexion to 30 degrees, extension to 40 degrees, lateral flexion to 25 degrees bilaterally, and lateral rotation to 50 degrees on the right and 45 degrees on the left.  Pain was reported with all motion, with and without weightbearing.  Passive range of motion testing was not indicated, according to the examiner.  Repetitive motion did not result in any additional limitation of motion.  No crepitus was present, but the Veteran had moderate localized tenderness on palpation of the posterior aspect of the neck.  With repeated use over time, the examiner opined the Veteran would have forward flexion to 25 degrees, extension to 35 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 45 degrees on the right and 35 degrees on the left.  During flare-ups, the examiner opined the Veteran would have forward flexion to 20 degrees, extension to 30 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 40 degrees on the right and 30 degrees on the left.  Localized tenderness was present, but this did not result in an abnormal gait or abnormal spinal contour.  Muscle strength was 5/5 at the elbows, wrists, and fingers bilaterally, and no muscle atrophy was present.  Reflexes of the bilateral upper extremities were also normal, and no radiculopathy, intervertebral disc syndrome, or ankylosis was present.  The Veteran did not require assistance devices.  Regarding occupational impairment, the examiner opined that physical labor would be prohibited due to the cervical spine disability.  Regarding a retrospective opinion of the Veteran's functional impairment from 2012 to the present, the examiner concluded this disability had worsened over time, resulting in increased limitation of motion during flare-ups over this period.  The examiner could not otherwise quantify the Veteran's impairment in terms of additional limitation of motion or other functional loss.  

Finally, additional VA outpatient treatment records and medical records associated with the Veteran's claim for Social Security disability benefits have been obtained and reviewed.  

Considering first the period prior to October 28, 2019, the Veteran has been awarded a 10 percent disability rating.  After considering the totality of the record for this period, the Board finds that a disability rating in excess of 10 percent is not warranted.  The evidence of record, to include the October 2014 VA examination and VA outpatient treatment records, does not reflect forward flexion of the cervical spine not greater 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.  In the absence of such findings, an increased rating is not warranted.  The Veteran is also without a diagnosis of intervertebral disc syndrome for this period.  

As for functional impairment, the Veteran experienced neck pain and he reported worsening pain during flare ups. There was no additional limitation in range of motion following repetitive use testing, and the VA physician who provided the December 2021 retrospective medical opinion indicated that the Veteran's flare ups had worsened over time prior to October 2019, causing increased limitations of the ranges of motion during those periods, thereby causing limitations in normal daily functions, such as driving a motor vehicle.

The Veteran is competent to report the symptoms associated with his service-connected cervical spine disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Even taking into account the Veteran's competent and credible reports of additional pain, limitation of motion, and other impairment of the cervical spine during flare-ups and with repeated use over time, no examiner has opined that such factors result in additional loss of range of motion or other functional loss sufficient to warrant a higher evaluation for this period. Specifically, the above evidence reflects that the flare ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during the claim period prior to October 28, 2019. The most persuasive evidence shows that even considering pain, flare ups
 Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Even taking into account the Veteran's competent and credible reports of additional pain, limitation of motion, and other impairment of the cervical spine during flare-ups and with repeated use over time, no examiner has opined that such factors result in additional loss of range of motion or other functional loss sufficient to warrant a higher evaluation for this period. Specifically, the above evidence reflects that the flare ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during the claim period prior to October 28, 2019. The most persuasive evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's neck symptoms were not shown to have been so disabling to actually or effectively result in limitation of forward flexion of the cervical spine more nearly approximating greater than 15 degrees, but not greater than 30 degrees, or limitation of the combined range of motion of the cervical spine to 170 degrees or less, or fixation of the entire cervical spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula, which are the requirements for ratings higher than 10 percent based on limitation of spinal motion or ankylosis/functional equivalent of ankylosis under the General Rating Formula. Thus, a disability rating in excess of 10 percent prior to October 28, 2019 is not warranted.  

Considering next the period from October 28, 2019 through June 14, 2021, the Veteran has been granted a 20 percent rating.  For this period, the evidence does not demonstrate forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine.  In the absence of such findings, an increased rating is not warranted.  The Veteran is also without a diagnosis of intervertebral disc syndrome for this period.  Even taking into account the Veteran's reports of additional pain, limitation of motion, and other impairment of the cervical spine during flare-ups and with repeated use over time, no examiner has opined that such factors result in additional loss of range of motion or other functional loss sufficient to warrant a higher evaluation for this period.  According to the October 2019 VA examination report, forward flexion was still to 25 degrees, even factoring in pain, weakness, fatigability, and other functional impairment during flare ups and with repeated use over time. The most persuasive evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's neck symptoms were not shown to have been so disabling to actually or effectively result in limitation of forward flexion of the cervical spine to 15 degrees or less, or fixation of the entire cervical spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula, which are the requirements for ratings higher than 20 percent based on limitation of spinal motion or ankylosis/functional equivalent of ankylosis under the General Rating Formula. Thus, a disability rating in excess of 20 percent from October 28, 2019 through June 14, 2021 is not warranted.  

Finally, the Veteran has been granted a 30 percent rating effective June 15, 2021.  For this period, the evidence is against a finding of unfavorable ankylosis of the cervical spine, as would warrant the next higher rating of 40 percent.  Even taking into account the Veteran's reports of additional pain, limitation of motion, and other impairment of the cervical spine during flare-ups and with repeated use over time, no examiner has opined that such factors result in unfavorable ankylosis or the functional equivalent thereof.  The Veteran also has not been diagnosed with intervertebral disc syndrome during this period.  

In evaluating these increased ratings claims, the Board has also considered the effects of pain and other functional loss.  See 38 C.F.R. §§ 4.45, 4.59, DeLuca, 8 Vet. App. at 202, Mitchell, 25 Vet. App. at 44.  While the Veteran has reported pain on use, this has not resulted in any additional limitation of motion sufficient to support higher ratings.  Moreover, the Court has clearly indicated that painful motion does not equate to limited motion.  In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results."  Mitchell, 25 Vet. App. at 41, 43.  Without any evidence of functional loss from the pain, an increased evaluation based solely on pain is not warranted. 
 DeLuca, 8 Vet. App. at 202, Mitchell, 25 Vet. App. at 44.  While the Veteran has reported pain on use, this has not resulted in any additional limitation of motion sufficient to support higher ratings.  Moreover, the Court has clearly indicated that painful motion does not equate to limited motion.  In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results."  Mitchell, 25 Vet. App. at 41, 43.  Without any evidence of functional loss from the pain, an increased evaluation based solely on pain is not warranted.  Id.  

VA examiners have also provided opinions, or stated such opinions could not be provided, regarding additional impairment resulting during flare-ups.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Such impairment does not, however, support higher disability ratings than those already awarded by VA at any time during the pendency of the appeal, as explained above.  

For the foregoing reasons, the evidence persuasively weighs against the Veteran's claim for a rating in excess of 10 percent prior to October 28, 2019, in excess of 20 percent from October 29, 2019 through June 14, 2021, and in excess of 30 percent since June 15, 2021 for degenerative arthritis of the cervical spine.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

As a final point, in conjunction with the claim for an increased rating for degenerative arthritis of the cervical spine, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 

 

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Thomas D. Jones, 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.