Entitlement to a 30 percent rating, and no higher, from April 17, 2023, for degenerative disc disease (DDD) of the cervical spine with cervicalgia is granted.

Citation Nr: 26001403 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 19-00 579 DATE: January 30, 2026 ORDER Entitlement to a 30 percent rating, and no higher, from April 17, 2023, for degenerative disc disease (DDD) of the cervical spine with cervicalgia is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his DDD of the cervical spine with cervicalgia was manifested by pain and limited motion with forward flexion to 15 degrees during flare-ups from April 17, 2023; but not unfavorable ankylosis of the entire cervical spine. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, and no higher, from April 17, 2023, for DDD of the cervical spine with cervicalgia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.71a, Diagnostic Codes, 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to September 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a virtual teleconference hearing held before the undersigned Veterans Law Judge in August 2022; a transcript is of record. The Board remanded the issue of entitlement to a higher initial rating for further development in March 2023. The Board denied a higher initial rating in a January 2024 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In a January 2025 Joint Motion for Partial Remand (JMPR), the Court remanded the matter for further development and adjudication consistent with the JMPR. In June 2025, the Board remanded the appeal for additional development. In September 2025, the Board denied an initial rating higher than 10 percent prior to February 25, 2019, and granted a 20 percent rating from February 25, 2019 to April 16, 2023. The Board remanded entitlement to a rating higher than 10 percent from April 17, 2023, for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a 30 percent rating, and no higher, from April 17, 2023, for DDD of the cervical spine with cervicalgia is granted. Following the September 2025 Board remand, the AOJ granted a 30 percent rating effective October 30, 2025 in the November 2025 rating decision. The Veteran contends that he is entitled to a rating higher than 10 percent for his cervical spine disability. The appeal period begins on April 17, 2023. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally, Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's cervical spine disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237, effective until October 30, 2025; thereafter, it has been rated under Diagnostic Code 5237. Although various musculoskeletal diagnostic codes were amended effective February 7, 2021, no substantive changes were made to the rating criteria that apply in this case. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 10 percent rating is warranted 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 warranted 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 warranted 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 warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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 normal combined range of motion of the cervical spine is 340 degrees. Id. at Note 2. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 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 the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Background During an April 2023 VA contract examination for cervical spine condition, the Veteran was diagnosed with DDD of the cervical spine with cervicalgia; spinal stenosis; intervertebral disc syndrome (IVDS); and cervical radiculopathy. He reported constant ache in the neck; increased pain with looking up or down for more than 15 minutes and with any movement looking over the shoulder; and numbness and feeling of falling asleep in all finger tips when reaching overhead. He did not report any flare-ups. He reported functional loss which was same as his current symptoms noted above. The initial range of motion test showed forward flexion to 40 degrees and a combined range of motion of 285 degrees. Extension and left lateral rotation exhibited pain, and the initial range of motion test reflected the pain. Passive range of motion was same as active range of motion. There was pain with weight-bearing non-weight-bearing; active and passive motions; and on rest/non-movement. Pain caused functional loss. There was no crepitus. There was no localized tenderness or pain on palpation. He was able to perform repetitive-use testing at least three times without additional loss of function or range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time but procured evidence suggested that pain limited functional ability; in terms of range of motion, forward flexion was 35 degrees and the combined range of motion was 260 degrees. There was no muscle spasm or guarding. Additional factors contributing to the disability were less movement than normal; interference with sleeping; and inability to lie down comfortably on pillow without aggravating neck pain. There was no ankylosis. The examiner noted that the Veteran had IVDS of the cervical spine that did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. In an April 2025 letter addressed "To whom it may concern," private clinician M.N. stated that the Veteran has been under her care for many years. She noted that the Veteran suffers with chronic neck and low back pain. She noted that the Veteran has found acupuncture to be very beneficial to alleviate pain symptoms, and promote increased activities of daily living and better quality of life. She noted that it seems the insurance coverage for the Veteran's acupuncture therapy has been denied, and she was seeking reconsideration as the therapy has proven to be beneficial to the Veteran and is a medical necessity. In an August 2025 lay statement, the Veteran stated that moving his neck has become increasingly more difficult and painful, and that the range of motion has become more limited many days. He stated that he is required to search vehicles at work and has difficulty constantly trying to turn and adjust his head while searching. He stated that the need for leave from work and medications has increased in the last one and a half years due to being denied acupuncture which was previously authorized. He stated that the VA Whole Health section deemed acupuncture "medically unnecessary," which was going against proven relief and VA primary care physician's recommendations. During an October 2025 VA contract examination for cervical spine condition, the Veteran was diagnosed with DDD; degenerative arthritis; spinal stenosis; IVDS; and bilateral upper extremity radiculopathy. He reported pain, stiffness, decreased mobility, and guarding in the neck. He described flare-ups as increased pain 4-5 times a week that lasted 1 to 12 hours; he stated that the functional impact was difficulty with sitting in one position for extended period of time; turning head side to side to see adjacent objects; lifting/pressing overhead under loadbearing; static forward flexion/extension activity; and sleeping through the night. He reported functional loss in that "I can't look down for too long - I'll start getting pain. Just sitting in one place for too long, my neck hurts and my arms with start tingling. I can't sleep through the night." The initial range of motion test showed forward flexion to 25 degrees and a combined range of motion of 120 degrees. All ranges exhibited pain. Passive range of motion results were the same as active ranges. There was pain with weight-bearing; non-weight-bearing; active motion; passive motion; and on rest/non-movement. The pain caused functional loss. He was able to perform repetitive use testing at least three times without additional loss of function or range of motion. He was not examined immediately after repeated use over time or during a flare-up, but procured evidence suggested that pain, fatigability, and lack of endurance limited functional ability after repeated use over time or during a flare-up; in terms of range of motion, forward flexion was 15 degrees and the combined range of motion was 75 degrees. He had midline lower cervical axial tenderness and bilateral lower cervical paraspinous guarding that did not result in abnormal gait or abnormal spinal contour. There was no ankylosis. There were no other factors contributing to the disability. The examiner noted that the Veteran had IVDS of the cervical spine that did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted in the remarks that the Veteran's service-connected cervical disability has worsened since his last VA examination. In a November 2025 VA opinion, the October 2025 VA examiner was asked when or at what point the Veteran's cervical spine disability had worsened. The examiner noted that the October 2025 examination revealed worsened range of motion movements in all planes relative to his last examination in April 2023. He noted that a review of the Veteran's medical records does not show any specific neck examinations by a provider that allows him to state when the worsening began. He stated that prior to 2023, he sees multiple notes from various providers regarding his neck pain and treatment for it. He stated that "considering the absence of records between his last C&P examination in 2023 and the C&P examination on 10/30/2025, I cannot give a specific answer on when the worsening occurred." In a May 2025 Informal Hearing Presentation (IHP), the Veteran argued that the April 2023 VA examination was inadequate because the examiner did not indicate at which point pain began during the initial range of motion test. He also argued that although the April 2023 VA examiner noted that the Veteran did not report flare-ups at the time of the examination, the examiner failed to address his July 2022 Board hearing testimony that "depending on his activities, [his neck flares-up] two or three times a week," and that after "a lot of repetitive head motion, it will flare." The Veteran's VA treatment records from April 2023 and onward intermittently show complaints of neck pain and requests to reauthorize acupuncture treatment. Notably, a May 2023 record noted the Veteran has chronic neck and back pain, and that a work-up has been completed requesting referral to acupuncture and chiropractic. A March 2024 VA Whole Health record noted that after review of acupuncture notes, there was no durable improvement with the Veteran's diagnoses as deemed by the VA Standard Episode of Care (SEOC) procedural overview, and that physical therapy was recommended. In a March 2024 record, the Veteran stated that he has been doing therapy exercises but only had minimal results, and that acupuncture actually has a positive result. In a May 2024 record, he stated that he has not received an update from the Whole Health section. He reiterated that acupuncture has improved his daily quality of life physical and mentally. In an August 2024 record, the Veteran stated he does continue to do physical therapy exercises but wanted to request acupuncture therapy again. In a May 2025 VA record, he stated he did not understand why the acupuncture request keeps getting denied. The assessment was 'Chronic neck back pain no radiculopathy.' The clinician noted that acupuncture treatment request was placed one more time. There are private records from Volunteer Chiropractic dated from July 2023 to December 2023. The July 2023 record noted a complaint of posterior cervical (neck) aching and dull discomfort. For assessment, the clinician noted that the Veteran is of fair health and is expected to make fair progress and recovery with some residuals. He noted that the Veteran "has number of exacerbations, during of current episode longer than 1 month and osteoarthritis as a complication factor(s) affecting his recovery." The records thereafter continue to note similar findings and assessment through December 2023. Analysis The Veteran argued in the May 2025 IHP that the April 2023 VA examination was inadequate because the examiner did not indicate at which point pain began during the initial range of motion test. The Board disagrees and finds that the April 2023 VA examination was overall adequate and complied with Correia, Sharp, and DeLuca. The initial range of motion test showed forward flexion to 40 degrees and a combined range of motion of 285 degrees. The examiner noted that extension and left lateral rotation exhibited pain, and that the initial range of motion test reflected the pain. The examiner noted that passive range of motion was the same as active range of motion, and that there was pain with weight-bearing, non-weight-bearing, active and passive motions, and on rest/non-movement. The examination report shows that "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other; please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." It further provided lined spaces to be used "(if different than above)." Thus, the examiner was to provide separate ranges "if different than above." The Veteran could have felt pain, but the difference in ranges may have been insignificant that a separate notation was unnecessary. The examiner did choose to indicate the difference for repeated use over time, which was an additional 5 degrees of loss of extension motion and left lateral rotation. It does not appear that the examiner had failed to indicate the difference, but chose not do so, as it was unnecessary. Of note, the October 2025 VA examiner also left the lined spaces blank, but the Veteran has not challenged that examination. In view of the foregoing, the Board finds that the April 2023 VA examination was adequate. The Veteran also argued in the May 2025 IHP that although the April 2023 VA examiner noted that the Veteran did not report flare-ups at the time of the examination, the examiner failed to address his July 2022 Board hearing testimony that "depending on his activities, [his neck flares-up] two or three times a week," and that after "a lot of repetitive head motion, it will flare." The April 2023 VA examiner was to assess the Veteran's then current severity, and the examiner did so by inquiring whether the Veteran had any flare-ups. The Veteran answered in the negative. Thus, there was no error in the April 2023 VA examiner's assessment. One thing that could be considered though, as an implicit indication of a flare-up, was the Veteran's statement that he had increased pain with looking up or down for more than 15 minutes and with any movement looking over the shoulder. He stated during the July 2022 Board hearing that after "a lot of repetitive head motion, it will flare." Thus, the Veteran's reports of increased pain with certain movements during the April 2023 examination, may be deemed the description of his flare-ups. Given the Veteran's explicit denial of any flare-ups but possible implicit indication of flare-ups described as increased pain with looking up or down for more than 15 minutes and with any movement looking over the shoulder, and lack of range of motion values during a flare-up in the April 2023 examination report, the Board extrapolates the October 2025 examination's flare-up range of motion estimates to the April 2023 examination, which was forward flexion to 15 degrees. This would warrant a 30 percent rating under the General Formula. Moreover, the October 2025 VA examiner indicated that while the worsening of the Veteran's service-connected cervical spine disability did occur between the April 2023 and the October 2025 VA examinations, given the absence of treatment records for neck pain during that period, he was not able to determine when the worsening occurred. However, the Veteran's private records show treatment for neck pain during that period. Indeed, the July 2023 private record noted that the Veteran has "number of exacerbations, during of current episode longer than 1 month." This likely supports, than negates, the possibility that the worsening occurred around or a month and a half before July 2023. Given the foregoing, resolving any doubt in the Veteran's favor, the Board finds that a 30 percent rating is warranted from April 17, 2023. A rating higher than 30 percent is not warranted. The evidence of record fails to show unfavorable ankylosis of the entire cervical spine. The Veteran's cervical spine motion has been limited to, at worst, 15 degrees in forward flexion and 10 degrees or higher in the rest of the ranges, and there was no indication of the entire cervical spine being fixed in flexion or extension at any time during the appeal period under review. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (5). The Board has also considered Diagnostic Code 5243, for IVDS. However, the evidence does not show, and the Veteran did not report, having been prescribed bed rest by a physician for a duration that meets the criteria for a higher rating (i.e., with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months). The VA examiners consistently noted that the IVDS of cervical spine did not require bedrest by a physician, and his treatment records do not reflect such. Thus, a rating higher than 30 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. (Continued on the next page) ? In conclusion, the Board finds that a 30 percent rating, and no higher, is warranted from April 17, 2023, for the Veteran's DDD of the cervical spine with cervicalgia. All reasonable doubt has been resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Attorney Advisor 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.