Citation Nr: 18149903 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 17-50 037 DATE: November 14, 2018 ORDER An increased initial 30 percent rating for a cervical spine disability is granted, prior to October 22, 2013, between February 1, 2014 and January 30, 2015, and from May 1, 2015. An increased initial rating of 40 percent for the neurological manifestations affecting the left upper extremity (upper radicular group), of the cervical spine disability is granted, prior to November 28, 2012. An increased initial rating of 40 percent for the neurological manifestations affecting the right upper extremity (upper radicular group), of the cervical spine disability is granted, prior to July 23, 2015. A separate 20 percent rating for the neurological manifestations affecting the left upper extremity (middle radicular group), of the cervical spine disability is granted, effective January 30, 2012. A separate 20 percent rating for the neurological manifestations affecting right upper extremity (middle radicular group), of the cervical spine disability is granted, effective January 30, 2012. A total disability rating based on individual unemployability due to the cervical spine disability is granted, effective January 30, 2012. FINDINGS OF FACT 1. Throughout the period on appeal, the orthopedic manifestations of the cervical spine disability were productive of forward flexion limited to at most 15 degrees or less, taking into account functional loss due to pain and less movement than normal. 2. On October 22, 2013, the Veteran underwent anterior cervical discectomy and fusion at C5-6 & C6-7. 3. On January 30, 2015, Veteran underwent a cervical laminectomy fusion between discs C4 and C7. 4. The October 2013 and January 2015 surgeries resulted in surgical ankylosis of the cervical spine. 5. Since October 22, 2013, the Veteran’s surgical ankylosis has limited his ability to drive, as he cannot turn his head to the left. It has also produced difficulty looking down when completing simple tasks such as, buttoning shirts, vacuuming, or tying shoes. 6. The Veteran is right hand dominant. 7. Throughout the claim period, the Veteran’s left upper extremity radiculopathy (upper radicular group) has most nearly approximated severe incomplete paralysis. 8. Throughout the claim period, the Veteran’s right upper extremity radiculopathy (upper radicular group) has most nearly approximated moderate incomplete paralysis. 9. Throughout the claim period, the Veteran’s cervical spine disability has been productive of bilateral upper extremity radiculopathy involving the middle radicular group that is at most mild in nature. 10. The Veteran’s service-connected cervical spine disability has precluded him from securing or following a substantially gainful occupation since the date VA received his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating of 30 percent, but no higher, for the orthopedic manifestations of the cervical spine disability are met, prior to October 22, 2013, between February 1, 2014 and January 30, 2015, and from May 1, 2015. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for an initial evaluation of 40 percent prior November 28, 2012 are met for the service-connected radiculopathy of the left upper extremity (upper radicular group). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 3. The criteria for an initial evaluation of 40 percent prior July 23, 2015 are met for the service-connected radiculopathy of the right upper extremity (upper radicular group) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8510. 4. The criteria for separate 20 percent disability ratings for the left and right upper extremity radiculopathy (middle radicular group) have been met since January 30, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511. 5. The criteria for a TDIU have been met since January 30, 2012. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The RO in Wichita, Kansas certified the appeal to the Board. The Veteran’s claims file remains in the jurisdiction of the Wichita RO. The Veteran’s claim for service connection for a cervical spine condition was originally filed on January 30, 2012. In a July 25, 2012 rating decision, the RO granted service connection for cervical spondylosis, effective January 30, 2012. In a September 2012 rating decision, the RO granted service connection for cervical radiculopathy of the bilateral upper extremities and assigned 20 percent disability ratings for each extremity, effective January 30, 2012. In response, the Veteran filed a November 2012 notice of disagreement, asserting entitlement to higher initial ratings for the orthopedic and neurological manifestations of the cervical spine disability. Since the November 2012 notice of disagreement, the RO assigned higher ratings and the Veteran filed several notices of disagreement. In a November 2013 rating decision, the RO assigned a higher 40 percent rating for the upper left extremity radiculopathy, effective November 28, 2012, denied a higher evaluation for the right extremity disability, denied a higher evaluation for the cervical spine disability, and denied a temporary total evaluation of treatment for the cervical spine. In a February 2015 rating decision, the RO assigned a temporary evaluation of 100 percent for the cervical spine disability, effective October 22, 2013, a 20 percent rating from February 1, 2014, a temporary evaluation of 100 percent effective January 30, 2015, and 20 percent rating from May 1, 2015. Also, the RO denied assigning a higher evaluation for the radiculopathy disabilities. In an August 2017 rating decision, the RO assigned a higher 40 percent rating for the right upper extremity radiculopathy, effective July 23, 2015. The Veteran’s multiple disagreements with the ratings and effective dates subsequently assigned reflect that he has never indicated satisfaction with the subsequently increased ratings for his cervical spine disability. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Accordingly, the July 2012 rating decision is not final, and the claim for entitlement to higher initial disability rating for cervical spine disability remains pending. The Board notes that the claim period under review excludes the time period between October 22, 2013 to February 1, 2014, and from January 30, 2015 to May 1, 2015, as these periods are when the RO assigned a temporary total disability rating pursuant to 38 C.F.R. § 4.29. The issue of entitlement to a TDIU is part of the Veteran’s current appeal of the ratings assigned for the cervical spine disability because he raised the issue of unemployability during the course of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”). As such, a claim for a TDIU has been pending since the Veteran appealed the ratings assigned for cervical spine disabilities. Id. Accordingly, the Board addresses the issue below. Increased Rating As discussed above, the Board finds that the period under review is from January 30, 2012 to the present. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Orthopedic Manifestations Excluding the assigned periods of temporary total evaluations (October 22, 2013 - February 1, 2014; January 30, 2015 - May 1, 2015) the orthopedic manifestations of the Veteran’s cervical spine disability have been evaluated as 20 percent disabling under Diagnostic Code 5242, degenerative arthritis of the spine. Pursuant to 38 C.F.R. § 4.71a, disabilities evaluated under Diagnostic Code 5242 may be rated either under the general rating formula for diseases and injuries of the spine (general rating formula) or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A rating of 10 percent is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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 rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined ROM 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 rating of 30 percent is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine, and a rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. Note 5 to the general rating formula defines unfavorable ankylosis as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spinal column 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.” Note 5 to the general rating formula also clarifies that “[f]ixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.” Comparatively, under the formula for rating IVDS, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” Finally, the Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In light of the above, the Board will now apply the applicable legal principles to the symptoms of the Veteran’s cervical spine disability present during the relevant time periods on appeal. As an initial matter, the Board notes that it will not consider the formula for rating intervertebral disc syndrome (IVDS) as the Veteran has not had any “incapacitating episodes” as defined in Note 1 to the formula for rating IVDS throughout the course of appeal to warrant a rating in excess of 20 percent. See 38 C.F.R. § 4.71a. As such, the Board will evaluate the Veteran’s level of disability pursuant to the General Rating Formula only. a. Prior to October 22, 2013 Relevant clinical evidence dated prior to October 22, 2013 includes a June 2012 report of VA examination. At the time of the examination, the Veteran reported that his neck was “always painful and pops a lot [sic].” The examiner documented a diagnosis of cervical spondylosis. Range of motion testing demonstrated forward flexion to 25 degrees. Repetitive range of motion testing demonstrated increased flexion to 30 degrees. The examiner found that the Veteran’s neck disability resulted in less movement than normal and guarding or muscle spasms. Additionally, the examiner found that the Veteran’s had IVDS of the cervical spine, but indicated that the Veteran had not had any incapacitating episodes over the past 12 months. The examination report did not address the presence of ankylosis. The Veteran was afforded a second VA examination in October 2012. The examination report documented the Veteran’s reports that he experienced flare-ups that prohibited him from driving on highways, as he was unable to turn his neck to the left during a flare up. Range of motion testing demonstrated flexion to 30 degrees, with objective evidence of painful motion beginning at 5 degrees. There was no further limitation of flexion with repetitive range of motion testing. The examiner determined that the cervical spine disability resulted in less movement than normal, excess fatigability, incoordination, impaired ability to execute skilled movement smoothly, and pain on movement. Veteran reported localized tenderness on neck or pain to palpation. The Veteran did not exhibit any guarding or spasms. The examiner did not verify IVDS of the cervical spine. The examination report did not address the presence of ankylosis. Based upon the clinical findings described above, the Board finds that the criteria for an increased 30 percent rating are met prior to October 22, 2013, because the evidence of record, with consideration of repetitive testing, painful motion, and functional loss, shows limitation of forward flexion to 15 degrees or less. Although flexion was measured in excess of 15 degrees during the June 2012 VA examination, the Board considers the October 2013 finding that pain began at 5 degrees flexion to be more representative of the severity of the limitation of motion of the Veteran’s cervical spine disability. Thus, in light of the evidence of functional loss and considering the DeLuca factors, the Board finds that an increased 30 percent rating is warranted under Diagnostic Code 5242, prior to October 22, 2013. See 38 C.F.R. §§ 3.102, 4.71a, 4.66; DeLuca, 8 Vet. App. at 204-7. b. From February 1, 2014 The Veteran underwent anterior cervical discectomy and fusion at C5-6 & C6-7 on October 22, 2013. March 2014 MRI progress notes documented “loss of normal cervical lordosis with mild reversal noted at the C4-C5 level unchanged since prior examination.” Range of motion testing demonstrated full flexion. However, the examiner noted that there was interval anterior spinal fusion extending from C5-C6 level with disc spaces and anterior fusion plate. The Veteran reported experiencing weakness and feeling as though “things ha[d] gotten worse since the surgery.” Aggravating factors included lack of head supports, leaning forward, prolonged flexion, and prolonged standing activity. Following the October 2013 discectomy and fusion, progress notes reveal that the severity of the Veteran’s neck disability did not improve. For example, December 2014 VA treatment records documented the Veteran’s reports of increasing neck pain and associated “issues.” Upon examination, the Veteran displayed full range of motion. Progress notes recorded the Veteran’s consultation for an additional cervical spine surgery. On January 30, 2015, the Veteran had a second cervical spine surgery. February 2015 discharge records stated that the Veteran underwent a cervical laminectomy fusion between discs C4 and C7. The Veteran was afforded a third VA examination in November 2015. The examination report documented the Veteran’s reports of increasing neck pain. He assessed his neck pain as six to eight on a scale from one to ten, ten being the value representing the most painful. Range of motion testing revealed forward flexion limited to 20 degrees. The examiner found that forward flexion resulted in neck pain. Repetitive motion testing did not result in any additional loss of function or range of motion. In regards to evidence to support a finding of ankylosis, the examiner stated that there was no ankylosis of the spine. But, the examiner affirmed that other factors contributed to the Veteran exhibiting less neck movement than normal, specifically “ankylosis, adhesions, etc.” A November 2015 Disabilities Benefits Questionnaire (DBQ) filled out by a private clinical notes that the Veteran exhibited limited range of motion due to his neck disability. Following range of motion testing, the Veteran displayed forward flexion to 45 degrees, although pain began at 0 degrees. The examiner explained that the Veteran’s neck was very stiff and that he was unable to turn his head during flare ups. Contributing factors of functional loss included less movement than normal, weakened movement, excess fatigability, pain on movement, and deformity. The examiner found unfavorable ankylosis of the entire cervical spine, noted “C5-C7 fused cervical spine fused anteriorly with kyphotic deformity.” Most recently, the Veteran was afforded a VA examination in June 2017. The Veteran reported that after his January 2015 surgery he attended “48 session of physical therapy, chiropractor, and acupuncture with no improvement.” Additionally, the Veteran stated that he walked “a mile every morning, I have a hard time running the vacuum cleaner and washing dishes, I have trouble putting a fitted sheet on the bed . . . I can feed myself. I have trouble buttoning my shirt and tying my shoes that is difficult.” The Veteran did not report any flare-ups. Range of motion testing demonstrated forward flexion to 45 degrees. The examiner stated that the Veteran did not move beyond the point of pain during range of motion testing, but found “[n]o pain noted on the exam.” Repetitive use testing did not result in additional loss of function or range of motion. Regarding evidence to support a finding of ankylosis, the examiner stated that there was no ankylosis of the spine. But, the examiner affirmed that other factors contributed to the Veteran exhibiting less neck movement than normal, specifically “ankylosis, adhesions, etc.” Additionally, the examiner commented “status post fusion in 2013 and another fusion in 2015 of the cervical spine, which restricts his movements.” There is no further relevant clinical evidence. In evaluating whether the criteria for a rating higher than 20 percent are met, the question before the Board is whether there is ankylosis in this case. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259, 259 (1992); see DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 94 (32nd ed. 2012). Here, the November 2015 DBQ verified ankylosis of the entire cervical spine and cited to the Veteran’s two surgical procedures (October 2013 and January 2015). The Board acknowledges that the November 2015 and June 2017 VA examiner indicated that there was no ankylosis. However, each of the examiners contrastingly stated that “ankylosis, adhesions, etc.” contributed the Veteran’s limitation of movement in the neck. Although the Board is free to supplement insufficient medical evidence by seeking additional opinions, it is not free to ignore or disregard sufficient medical evidence or to substitute its own judgment on medical matters. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). The Board finds that the competent and credible evidence of record is at a state of equipoise that enables the Board to find that as a result of the surgical procedures the cervical spine disability results in signs and symptoms analogous to ankylosis, such that the Board may find the presence of ankylosis in this case. The medical evidence and lay statements demonstrate that the Veteran’s ankylosis is in a favorable position. Note 5 to the general rating formula defines unfavorable ankylosis as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spinal column 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.” Note 5 to the general rating formula also clarifies that “[f]ixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.” The record demonstrates that the ankylosis has not prevented the Veteran from walking or driving. In fact, in the June 2017 VA examination, the Veteran reported that he is uninhibited from walking, cleaning, or feeding himself. The evidence of record does not include evidence demonstrating the ankylosis presented complications as listed in Note 5. The Board acknowledges the November 2015 DBQ finding of unfavorable ankylosis. But, the Board finds that medical opinion less probative because the examiner failed to explain his reasoning. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Instead, the Board finds the Veteran’s competent reports of daily activities more probative. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Board finds that since the October 2013 surgery the Veteran’s cervical spine disability has manifested in favorable ankylosis such that a higher 30 percent rating is warranted under Diagnostic Code 5242. A rating higher than 30 percent is not warranted because the evidence does not demonstrate unfavorable ankylosis of the cervical spine. 2. Neurological Manifestations The Board turns next, to consideration of the appropriate ratings for the neurologic manifestations of the Veteran’s cervical spine disability. Initially, it notes that no neurologic abnormalities other than radiculopathy of the bilateral upper extremities have been observed by clinicians or reported by the Veteran in connection with his cervical spine disability at any point during the claim period. Thus, the remaining question is whether his radiculopathy of the bilateral upper extremities is appropriately rated throughout the appeal period. Note 1 to the General Rating Formula for diseases and injuries of the spine provides that associated objective neurological abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a. The neurological manifestations of the Veteran’s cervical spine disability have been rated pursuant to Diagnostic Code 8150. The rating criteria for paralysis of the sciatic nerve are located under 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremity; a 30 percent rating is warranted for moderate incomplete paralysis of the minor extremity; a 40 percent rating is warranted for severe incomplete paralysis of the minor extremity; and a 60 percent rating is warranted for complete paralysis of the minor extremity, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Words such as “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The general rating formula for diseases and injuries of the spine provides that “any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1. As such, any symptoms of cervical radiculopathy are neurological manifestations of the Veteran’s cervical spine disability. Id. In the September 2012 rating decision, the RO granted service connection for cervical radiculopathy of the bilateral upper extremities and assigned 20 percent disability ratings for each extremity, effective January 30, 2012. In a November 2013 rating decision, the RO assigned a higher 40 percent rating for the upper left extremity radiculopathy, effective November 28, 2012. In an August 2017 rating decision, the RO assigned a higher 40 percent rating for the right upper extremity radiculopathy, effective July 23, 2015. The Board first evaluates the left upper extremity and finds that the severity of the left upper extremity radiculopathy affecting the upper radicular group most closely approximated a 40 percent rating throughout the claim period. Specifically, prior to November 2012, the medical evidence demonstrated that the disability manifested “severe” symptoms. For example, the June 2012 VA peripheral nerves examination report documented constant severe pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness of the upper extremities. As such, an increased 40 percent rating is warranted prior to November 28, 2012. A rating higher than 40 percent, however, is not warranted at any time during the claim period. In fact, the most probative medical evidence documents full elbow flexion and extension, to include during the June 2012 VA peripheral nerves examination, October 2013 VA examination, November 2015, and June 2017 examination. A November 2015 private disability benefits questionnaire evaluated the Veteran’s left upper radicular group as “mild . . . incomplete paralysis.” Further, the Veteran represented during the June 2017 VA examination that he has “difficulty” performing household chores, such as vacuuming and washing dishes, indicating that although he has trouble performing those tasks, he is still able to use his left arm in performing those tasks. The Veteran’s statements and the clinical findings demonstrate that the severity of his left upper extremity disability, affecting the upper radicular group, are productive of severe incomplete paralysis, but not complete paralysis. In evaluating the evidence as whole, a rating higher than 40 percent for the left upper extremity disability is not warranted. Next, the Board evaluates the severity of the right upper extremity radiculopathy. The record reveals that the Veteran is right hand dominant. The September 2012 VA examination addendum documented moderate intermittent pain and moderate paresthesias. The November 2015 cervical spine examination report recorded objective evidence of decreased sensation in the shoulder area. Also, the November 2015 peripheral nerves examination documented “moderate” numbness of the right upper extremity. A November 2015 private disability benefits questionnaire recorded mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. The June 2017 cervical spine examiner characterized the radiculopathy of the right extremity as “moderate.” Accordingly, the Board finds that the severity of the right upper extremity, affecting the upper radicular group, most closely approximated moderate throughout the claim period, such that an increased rating of 40 percent is warranted prior to July 23, 2015. A higher 50 percent rating is not warranted, as the disability is not productive of “severe” signs and symptoms. Finally, the Board finds that the criteria for the assignment of separate rating 20 percent ratings for mild incomplete paralysis of the upper extremities, affecting the middle radicular group, are also met. See 38 C.F.R. § 4.71a, Note 1. The September 2012 VA examination report indicated that the radicular symptoms involved both the C5/7 nerve roots (upper radicular groups) as well as C-7 nerve roots (middle radicular group). More recently, the June 2016 VA treatment records documented a possible diagnosis of C6-C7 radiculitis. The June 2017 VA examiner recorded the Veteran’s reports of numbness of the lateral aspect of the arm, shoulder level radiating down to the wrist. A July VA examiner found that the Veteran’s reported symptoms are more consistent with radiculitis of the C6-C7 nerve root. As the Veteran’s incomplete paralysis of the middle radicular group associated with his cervical spine disability is manifested by wholly sensory involvement (there are no objectively observable signs), a rating higher than 20 percent is not warranted for radiculopathy of the upper extremities affecting the upper radicular groups. See Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (holding that a rating higher than 20 percent may not be awarded for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations); 38 C.F.R. § 4.124a, Diagnostic Code 8511. The benefit of the doubt rule is not applicable in this instance. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has also considered whether separate ratings could be assigned for the Veteran’s upper extremity radiculopathy disability under any other applicable Diagnostic Codes, but the evidence of record does not support the award of separate ratings based on the July 2017 VA medical opinion. There, the VA examiner distinguished between the signs and symptoms associated with his service connected radiculopathy and his diagnosed carpal tunnel syndrome. The examiner opined that the Veteran’s description of symptoms, including numbness of the thumbs, index fingers, long fingers, hands, and palm, are separate and distinct from his conditions associated with his cervical spine disability. Therefore, the Board finds that separate ratings are not warranted for neurological symptoms within the lower radicular group as the VA examiner identified. See 38 C.F.R. § 4.71a, Diagnostic Code 8512. Additionally, to avoid pyramiding an evaluation of the same disability under several diagnostic codes, a separate compensable evaluation under Diagnostic Code 8513, 8514, 8515, 8516, 8517, and 8519 for the bilateral upper extremity radiculopathy is not warranted. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 2. TDIU Despite having determined that a 100 schedular rating for the cervical spine disability is not warranted, the competent and probative evidence of record shows that throughout the pendency of the appeal, the Veteran has been unable to obtain or maintain gainful employment due to his service-connected cervical disability, to include the orthopedic and neurological manifestations. Additionally, as a result of the increased ratings granted in this decision, the schedular criteria for a TDIU have been met throughout the appeal period, such that a TDIU is warranted, effective the date of claim. (CONTINUED ON NEXT PAGE) As a rating in excess of a total disability rating is not permissible by law, the Board need not address the arguments the Veteran raised in support of extraschedular ratings for his bilateral upper extremity radiculopathy. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel