Citation Nr: 18144140 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 14-16 076 DATE: October 24, 2018 ORDER From February 12, 2012 to July 2, 2018, an initial rating of 20 percent for cervical strain with degenerative arthritis is granted. An initial rating in excess of 20 percent for cervical strain with degenerative arthritis is denied. An initial 10 percent rating since July 2, 2018, for right cervical radiculopathy, claimed as right arm numbness, is granted.   FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s cervical strain with degenerative arthritis approximates forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees when considering functional loss due to pain; or the combined range of motion of the cervical spine is not greater than 170 degrees. 2. It is factually ascertainable that the Veteran’s right upper extremity symptoms date back to February 12, 2012. CONCLUSIONS OF LAW 1. From February 12, 2012, to July 2, 2018, the criteria for an initial 20 percent rating for cervical strain with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an initial rating in excess of a 20 percent rating for cervical strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for an initial rating of 10 percent rating for right cervical radiculopathy, claimed as right arm numbness, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8514. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had Army National Guard service starting in 1988 with intermittent periods of active duty for training (ACDUTRA) which includes January 1990 to April 1990, and inactive duty for training (INACDUTRA). He subsequently had active duty service from November 2007 to November 2009. The case is on appeal from a May 2016 rating decision. In a May 2018 Board decision, the Board denied an effective date prior to February 21, 2012, for cervical strain with degenerative arthritis. At that time, the Board remanded the claim for further development. While the case was in remand status, in an August 2018 rating decision, the RO increased the rating for the cervical spine disability to 20 percent and, granted a separate 10 percent disability rating for radiculopathy of the right upper extremity effective July 2, 2018. Although a higher rating has been assigned for the cervical spine disability, the increased rating matter remains in appellate status as the maximum rating has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Likewise, although not appealed by the Veteran, the Board takes jurisdiction of the radiculopathy issue as it is part and parcel of the cervical spine rating issue on appeal. See 38 C.F.R. § 4.71(a), General Rating Formula for Disease and Injuries of the Spine, Note (1). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. Otherwise, the lower rating will be applied. Id. All reasonable doubt will regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s service-connected cervical spine disability has been rated under DC 5237 throughout the appeal period. Under DC 5237, 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 based on evidence of 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. The next higher rating of 30 percent rating is warranted for forward flexion of the cervical spine 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. Id. When evaluating joint disabilities, e.g., the cervical spine, which are rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R § 4.59, which related to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In addition, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating – as well as for an initial rating – is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). B. Discussion 1. An initial rating for service-connected cervical spine disability higher than 10 percent prior to July 2, 2018, and higher than 20 percent thereafter. The Veteran contends that his service-connected cervical strain with degenerative arthritis is more severely disabling than reflected in the rating currently assigned. The appeal period now before the Board begins in February 2012, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned an initial 10 percent rating prior to July 2, 2018, and a 20 percent rating beginning from that date. Based on the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected cervical spine disability most closely approximates an initial 20 percent rating, but not higher, throughout the entire period on appeal (rather than since July 2, 2018). As noted above, a 20 percent rating will be assigned based on evidence of 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. Here, the Veteran’s symptoms support that throughout the appeal period, his forward flexion of the cervical spine was limited to 30 degrees when accounting for pain. During his July 2012 VA examination, the Veteran demonstrated forward flexion to 40 degrees, with pain beginning at 30 degrees. During his April 2016 VA examination, the Veteran demonstrated forward flexion to 40 degrees. Although the examiner noted that the Veteran exhibited pain with forward flexion, she did not record an associated range of motion measurement. In addition, during his July 2018 VA examination, the Veteran demonstrated forward flexion to 30 degrees, and a combined range of motion of 160 degrees (forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees). Considering these findings, and in light of DeLuca, i.e., considering painful motion and other factors, the Board finds that a higher 20 percent rating is warranted since February 12, 2012. While an increased initial rating to 20 percent is warranted for the Veteran’s cervical spine disability for the earlier rating period, an increase in excess of 20 percent is not supported at any time during the appeal period. In this regard, the record does not show and the Veteran does not contend that he experienced at any point during the appellate period, forward flexion of the cervical spine that was 15 degrees or less, or that he had favorable ankylosis of the entire cervical spine, as required by ratings in excess of 20 percent. Accordingly, the rating criteria do not warrant an increase in excess of 20 percent. In addition, the Board notes that a rating in excess of 20 percent is not warranted based on invertebral disc syndrome (IVDS). Spinal disabilities are rated under either the General Rating Formula for Diseases or Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (DC 5243), whichever would lead to a higher rating. 38 C.F.R § 4.71a, Note (6). However, in this case, the Veteran does not have IVDS, as objectively confirmed by the VA examiners who performed his July 2012, April 2016, and July 2018 VA spinal examinations, and thus had no incapacitating episodes. Thus, a rating based on IVDS is not warranted. Thus, affording reasonable doubt to the Veteran, the Board finds the evidence of record warrants a 20 percent rating, but no greater for the Veteran’s cervical spine disability for the entire period on appeal. See U.S.C. § 5107(b); 38 C.F.R §§ 3.102, 4.3. 2. An initial compensable rating for right cervical radiculopathy, claimed as right arm numbness. The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R § 4.71a, General Rating Formula, Note (1). Here, the Veteran is currently service-connected for radiculopathy of the upper right extremity as secondary to the service-connected cervical spine disability. Currently, the Veteran receives a 10 percent rating under DC 8514. The RO awarded the effective date of July 2, 2018 based on the date of the Veteran’s July 2018 VA examination. There is no indication of a corresponding neurologic abnormality in the left upper extremity. The July 2018 VA examiner found no such symptoms and determined that the left side was not affected. The examiner otherwise found no other neurologic abnormalities apart from the right upper extremity radiculopathy. Earlier, a VA Neurology consultation in April 2016, which included a nerve conduction study noted no abnormality in the left upper extremity. Although the Veteran is currently assigned an effective date of July 2, 2018, for the right upper extremity radiculopathy, the evidence is in equipoise in demonstrating that it is factually ascertainable that the Veteran’s right upper extremity symptoms date back to February 12, 2012, which is the date of the Veteran’s claim for service connection for the underlying cervical spine disability. During an April 2011 VA examination, the Veteran reported that he experienced intermittent pain with numbness in his right arm about two or three times a week for the past year and a half. In addition, an April 2016 VA treatment record indicates that the Veteran complained of intermittent numbness in his right arm triggered by most activities including using a hammer. The Board acknowledges on both the July 2012 and April 2016 VA examinations that the examiners indicated that the Veteran did not have right upper extremity radiculopathy. However, the Veteran is both competent and credible in reporting these symptoms. The Board recognizes that because the Veteran described these symptoms as intermittent, they may not have been reflected in the earlier exams. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s symptoms associated with the Veteran’s right upper extremity radiculopathy have been shown throughout the entire rating period rather than just since July 2, 2018. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elissa Gray