CERVICAL SPINE DISABILITY

JONATHAN HAGER · 2024 · Case ID: A24049697

GRANTED

Summary

The veteran, who served from November 14, 2005, to April 30, 2011, with multiple periods of service, appeals the denial of service connection for a cervical spine disability and an increased rating for lumbar spine degenerative disc disease (DDD). The Board granted service connection for the cervical spine disability, finding the evidence evenly balanced and resolving the doubt in the veteran's favor, citing credible lay evidence of in-service neck pain and continuity of symptoms. The Board noted that while service treatment records did not document a neck injury, a fellow soldier's statement corroborated the veteran's neck issues and in-service complaints. The Board found the veteran competent and credible in reporting his symptoms. For the lumbar spine DDD, the Board granted an increased rating of 20 percent. The veteran reported pain, limitations with bending, and flare-ups, which the Board found credible. Although the VA examination showed range of motion findings that did not meet the criteria for higher ratings, the Board considered factors like disturbance of locomotion and interference with sitting, standing, and weight-bearing. The Board found the evidence evenly balanced for a 20 percent rating, resolving doubt in the veteran's favor. Higher ratings were not warranted as the criteria for flexion limitations or ankylosis were not met.

Rationale

Competent and credible lay evidence of in-service neck pain and continuity of symptoms.; Evidence is evenly balanced regarding relationship to service.; Reasonable doubt resolved in favor of the veteran.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210825-180667

Full Decision Text

Citation Nr: A24049697
Decision Date: 08/23/24 Archive Date: 08/23/24

DOCKET NO. 210825-180667
DATE: August 23, 2024

ORDER

Entitlement to service connection for cervical disc disorder, C4-5 (cervical spine disability) is granted.

Entitlement to an increased rating for degenerative disc disease of the lumbar spine status post spinal cord stimulator placement (lumbar spine DDD), of 20 percent, but no higher, is granted, subject to the laws and regulations controlling the award of monetary benefits.

FINDINGS OF FACT

1, The evidence is at least evenly balanced as to whether cervical spine disability is related to in-service neck pain.

2. Symptoms of the Veteran's degenerative disc disease of the lumbar spine have throughout the claim period more nearly approximates forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees, but have not at any time more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis or incapacitating episodes.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spine disability have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.102, 3.303.

2. The criteria for a rating of 20 percent, but no higher, for lumbar spine DDD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 14, 2005, to January 17, 2008, from April 22, 2008, to March 29, 2009, from August 22, 2009, to September 30, 2010, and from November 30, 2010, to April 30, 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2021 rating decision of the Department of Veterans Affairs (VA). In that decision, the Agency of Original Jurisdiction (AOJ), on higher level review, continued and confirmed the previous, April 2021, denial of service connection for cervical spine condition. The AOJ also continued the denial of an increased rating for lumbar spine DDD, then rated 10 percent. The AOJ readjudicated the service connection claim and the increased rating claim on the basis of receipt of new and relevant evidence. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Consequently, the Board will also address the merits of this claim.

In the August 2021 Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the Jul 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to service connection for cervical spine disability is granted.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (
previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to service connection for cervical spine disability is granted.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The April 2021 private treatment record contains a diagnosis of cervical disc disorder at the C4-5 level. The current disability requirement has thus been met.

The Veteran's service treatment record (STR) does not contain a notation of a neck injury. However, in an April 2021 lay statement the Veteran's fellow solider reported that while on active duty he witnessed the Veteran's neck issues. Further, the Veteran told him he was suffering from neck issues. Therefore, the in-service injury element has been met.

The remaining issue is thus whether there is a relationship between the current cervical spine disability and the in-service neck issues.

In an April 2021 lay statement the Veteran reported his problems began in late 2010 while on active duty. He reported he sought treatment for both his neck and lower back pain with a neurologist. However, the neurologist focused on the lower back without treating the neck because the lower back was the more severe issue. The Veteran reported since that time his neck has worsened, leading to frequent incapacitation from both his work and his personal life. Moreover, because of the pain, he began treatment with nerve blockers and steroid injections for his back. However, the Veteran's treating physician ultimately recommended a spinal cord implant. In July 2020 the Veteran underwent surgery. The Veteran reported since the surgery he still has neck pain, but it is more manageable.

For the following reasons service connection for cervical spine disability is warranted.

The Veteran is competent to report the continuity of the neck symptoms that he has experienced following injuries in service through the present. Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's statements are also credible, and indicate that he began experiencing neck pain in service and it continued until the post-service cervical spine diagnosis.

While the Board could request a medical opinion as to whether the current cervical spine disability is related to the in-service neck pain, when considered in light of the consistent and credible accounts of this Veteran, such a request could be interpreted as a prohibited attempt to develop evidence with the intention of denying the Veteran's service connection claim. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim").

To the extent that the grant of service connection for neck condition is based upon the plausible, consistent, and credible lay evidence, "[n]othing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself". Buchanan, 451 F.3d at 1335.

For the reasons above, the evidence is at least evenly balanced as to whether the Veteran's neck condition had its onset in service. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for cervical spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Entitlement to an increased rating for lumbar spine DDD of 20 percent, but no higher, is granted.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function
sufficient in and of itself". Buchanan, 451 F.3d at 1335.

2. Entitlement to an increased rating for lumbar spine DDD of 20 percent, but no higher, is granted.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already 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 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, the uniform 20 percent rating is proper.

The Veteran's degenerative disc disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, DC 5242. All disabilities of the spine are rated under the General Rating Formula for diseases and injuries of the spine.

Under the General Rating Formula, a 10 percent rating is warranted for 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 greater than 40 degrees; 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.

A 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is 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 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less. The only higher schedular ratings under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine.

Alternatively, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.

The regulations applicable to rating musculoskeletal disabilities require that VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ('flare-ups') due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and
six weeks during the past 12 months. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found an orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation. Id. at 29, 36. Significantly, the Court cited VA Clinician's Guide, which instructs orthopedic examiners to examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, "per [the] veteran, " to what extent, if any, they affect functional impairment. Sharp, 29 Vet. App. at 32 (citing VA Clinician's Guide, chapter 11).

The Veteran filed his claim for an increased rating for degenerative disc disease of the lumbar spine on April 6, 2021. The appeal period therefore begins one year prior to this date, April 6, 2020.

During an April 2021 VA examination, the Veteran reported he was performing PT when he had a sharp pain in the lower back. In approximately 2016 to 2018 he began steroid injection which helped for four to six weeks. He reported further, as noted above, he had a spinal cord stimulator implant in May 2020. The Veteran reported he was diagnosed with Charcot-Marie tooth disease, which was confirmed with genetic testing. Moreover, the Veteran reported constant stabbing pain in the lower back that is worse on the right side than the left, and pain that radiated down both legs. He rated his pain as a four to five out of ten. He reported using ibuprofen, heating pad, ice packs, and steroid injections to manage his pain. The clinician noted that the Veteran's reported flare-ups, specifically, his pain increased in the winter months. The clinician noted flare-up occur every six to eight weeks and last for three days. The pain is an eight out of ten during a flare-up. As to functional loss, the clinician noted the Veteran has difficult with prolonged walking, standing, lifting, bending, driving, and becomes distracted by pain at work.

The clinician noted the Veteran's forward flexion was to 80 degrees, extension was to 20 degrees, right lateral flexion was to 25 degrees, left lateral flexion was to 25 degrees, right lateral rotation was to 25 degrees, and left lateral rotation was to 25 degrees. Range of motion itself contributed to functional loss because of the limitation on bending over. Pain was noted on active motion but did not result in or cause functional loss. The clinician noted there was no evidence of crepitus but there was evidence of moderate localized pain in the joint or soft tissue. The Veteran was able to perform repetitive use testing with three repetitions, and there was no additional loss of functional or range of motion after three repetitions. The examination was conducted during a flare-up and the Veteran was able to perform testing during a flare-up. The clinician noted local tenderness but not muscle spasm or guarding. The clinician noted the Veteran's degenerative disc disease of the lumbar spine causes interference with standing, disturbance of locomotion
. Range of motion itself contributed to functional loss because of the limitation on bending over. Pain was noted on active motion but did not result in or cause functional loss. The clinician noted there was no evidence of crepitus but there was evidence of moderate localized pain in the joint or soft tissue. The Veteran was able to perform repetitive use testing with three repetitions, and there was no additional loss of functional or range of motion after three repetitions. The examination was conducted during a flare-up and the Veteran was able to perform testing during a flare-up. The clinician noted local tenderness but not muscle spasm or guarding. The clinician noted the Veteran's degenerative disc disease of the lumbar spine causes interference with standing, disturbance of locomotion, and less movement than normal, with limitation in forward flexion, extension, lateral flexion, right and left, lateral rotation, right and left. The Veteran's muscle strength was rated as normal with no muscle atrophy. The clinician noted radiculopathy on the left and right lower extremity. The clinician noted the Veteran does not have ankylosis, any other neurological abnormalities, or IVDS. Further, the clinician noted the Veteran's degenerative disc disease of the lumbar spine impacts his ability to work with two to four weeks of time lost in the last twelve months because of difficulty with prolonged walking, standing, lifting, bending, driving, and pain generally being distracting. The clinician provided as a rationale that the S/P spinal cord stimulator placement is the progression of the service connected degenerative disc disease of the lumbar spine.

For the following reasons, an increased disability rating of 20 percent is warranted for the entire appeal period.

The Veteran reported pain, limitations with bending, and flare-ups. The Veteran is competent to report these back symptoms, and there is nothing in the evidence of record to contradict his reports. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the Board finds his reported back pain symptoms are competent and credible. The April 2021 clinician also noted that the Veteran experienced pain during active motion and localized tenderness or pain in the lumbar spine resulting in less movement than normal. Further, the clinician noted local tenderness but not muscle spasm or guarding and the Veteran's degenerative disc disease of the lumbar spine causes interference with standing, disturbance of locomotion, and less movement than normal, with limitation in forward flexion, extension, lateral flexion, right and left, lateral rotation, right and left.

While the examination occurred during a flare-up and the range of motion findings thus take account of additional loss of motion during flare-ups (consistent with Sharp), there were additional factors for consideration, in particular disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45(f). These considerations reflect that the evidence of record is evenly balanced to support a finding that the symptoms of the Veteran's lumbar spine DDD have more nearly approximated flexion to between 30 and 60 degrees. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an increased disability rating of 20 percent is warranted for the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

A rating higher than 20 percent is not warranted as the next rating of 40 percent requires forward flexion limitation to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. As discussed above, the flare-ups did not cause additional limitation of motion beyond what was indicated on examination, and the related factors have been taken into account with the 20 percent rating, but do not show additional limitation or functional loss that rise to the level that would result in symptoms more nearly approximating flexion to 30 degrees or less or ankylosis.

Further, neither the VA or private treatment notes, VA examination reports, or the Veteran's statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine during the entire appeal period. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. Chavis

In addition, the Veteran does not contend, and the evidence of record does not reflect, that he has suffered from incapacitating episodes due to IVDS throughout the pendency of the appeal.

For the above reasons, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's degenerative disc disease of the
less or ankylosis.

In addition, the Veteran does not contend, and the evidence of record does not reflect, that he has suffered from incapacitating episodes due to IVDS throughout the pendency of the appeal.

For the above reasons, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's degenerative disc disease of the lumbar spine more nearly approximate the criteria for a 20 rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an increased rating of 20 for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.D. Strain, 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.

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