Citation Nr: 18117136 Decision Date: 07/10/18 Archive Date: 07/09/18 DOCKET NO. 05-32 600A DATE: July 10, 2018 ORDER For the entire period on appeal, a rating of 40 percent is granted for the cervical spine disability. For the entire period on appeal, a separate rating of 10 percent is granted for a demonstrable deformity from the fracture of the cervical spine in service. For the entire period on appeal, a separate rating of 20 percent is granted for radiculopathy of the right upper extremity. For the entire period on appeal, a separate rating of 20 percent is granted for radiculopathy of the left upper extremity. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving any doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s cervical spine disability was manifested by unfavorable ankylosis for the entire appellate period. 2. Resolving any doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s cervical spine disability was manifested by a demonstrable deformity of the C5 and C6 vertebrae for the entire appellate period. 3. Resolving any doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s cervical spine disability has been productive of neurological impairment of the right upper extremity that results in disability analogous to mild, at worst, incomplete paralysis of the peripheral nerve. 4. Resolving any doubt in the Veteran’s favor, his cervical spine disability has been productive of neurological impairment of the left upper extremity that results in disability analogous to mild, at worst, incomplete paralysis of the peripheral nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating for a cervical spine disability are met for the entire appellate period. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59 (2017), 4.71a, DCs (DCs) 5285-5295 (2002). 2. The criteria for a separate 10 percent rating, but no higher, for a demonstrable deformity of the C5 and C6 vertebrae are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 5285 (2002). 3. The criteria for a separate 20 percent rating, but no higher, for radiculopathy of the right upper extremity secondary to service-connected cervical spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8510 (2017). 4. The criteria for a separate 20 percent rating, but no higher, for radiculopathy of the left upper extremity secondary to service-connected cervical spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8510 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to June 1964. This matter came to the Board of Veterans’ Appeals (Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issues on appeal were last before the Board in June 2017. The Board remanded the claims for the AOJ to consider new evidence obtained by VA and to issue a supplemental statement of the case. Previously, in July 2009, the Board issued a decision that denied a rating higher than 30 percent for the service-connected spontaneous C5-6 cervical ankylosis, status post vertebrae compression fracture. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2010 Order, the Court granted a Joint Motion for Remand (JMR) that vacated the July 2009 Board decision based on the Veteran’s theory that a clear and unmistakable error (CUE) was contained in the November 1989 rating decision for failure to grant a separate 10 percent rating under DC 5285 for demonstrable vertebral deformity as a residual of a vertebrae fracture. The AOJ found that there was CUE in a May 2012 rating decision. The Veteran did not file a notice of disagreement with this rating decision, and it became final in May 2013. The Veteran has not sought to reopen it. The Veteran requested a Board hearing in his October 2005 substantive appeal, via a VA Form 9, but withdrew his request in an April 2009 correspondence. Referred The issues of entitlement to service-connection for an acquired psychiatric disorder and to service-connection for a headache disability, to include as secondary to the service-connected cervical spine disability have been raised by the record in a June 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Preliminary Matters The discussion below has been limited 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. During the lengthy pendency of this claim, the criteria for evaluating disabilities of the spine were amended. However, the September 2002 and September 2003 rating decisions evaluated the Veteran’s cervical spine disability under the old rating criteria for a cervical spine disability. 38 C.F.R. § 4.71a, DC5295. Taking these factors into consideration, the Board will proceed with consideration of this appeal, applying the version of the criteria which is more favorable to the appellant, subject to applicable effective date limitations. See VA O.G.C. Prec. Op. No. 3-2000 (Apr. 10, 2000), 65 Fed. Reg. 33,421 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The current spine rating criteria became effective on September 26, 2003. See 68 Fed. Reg. 51,454 (August 27, 2003). However, the Veteran’s rating period started in June 2001 (one year before Veteran submitted the claim for an increase in rating). The current criteria may only be applied prospectively from that date, and cannot be applied to a period prior to their effective date of September 26, 2003. The former rating criteria, however, may be applied throughout the period of the appeal, if they are deemed more favorable to the Veteran. 38 U.S.C. § 5110(g); VA O.G.C. Prec. Op. No. 7-2003 (Nov. 19, 2003); VA O.G.C. Prec. Op. No. 3-2000 (April 10, 2000); see generally Karnas v. Derwinski, 1 Vet. App. 308 (1991); but cf. Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005) and Kuzma v. Principi, 341 F.3d 132 (Fed. Cir. 2003). Thus, VA will review the Veteran’s appeal under only the former criteria for the period prior to September 26, 2003 and both the former and current criteria for the period beginning September 26, 2003. The Veteran’s service-connected cervical spine disability was originally evaluated by the RO under 38 C.F.R. § 4.71a, DC 5290-5287 (2002). Under former DC 5285, residuals of a fracture of a vertebra, a 60 percent rating is assigned for residuals of a fractured vertebra, without cord involvement, and with abnormal mobility requiring a neck brace (jury mast). A 100 percent rating is assigned for residuals of a fracture of a vertebra with cord involvement, bedridden, or requiring long leg braces. In other cases, the disability is rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. 38 C.F.R. 4.71a, DC 5285 (2002). Under DC 5286, a 60 percent rating was warranted for ankylosis of the entire spine at a favorable angle. A 100 percent rating was warranted for ankylosis of the entire spine at an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a, DC 5286. DC 5286 contemplates ankylosis of the whole spine-all three segments-cervical, lumbar, and dorsal. Under DC 5287, a 30 percent rating was the highest rating available for favorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a, DC 5287. A 40 percent rating is assigned for unfavorable ankylosis of the cervical spine. Former DC 5290 for “spine, limitation of motion of, cervical” provided that the highest schedular rating of 30 percent was assigned for severe limitation of motion of the cervical spine. See 8 C.F.R. § 4.71a, DC 5292 (2002). Effective September 26, 2003, disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The current General Rating Formula for Diseases and Injuries of the Spine provides (with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease) as follows: 100 percent rating for unfavorable ankylosis of the entire spine; 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine; and 40 percent rating for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). Former Diagnostic Code 5285, concerning demonstrable deformity of a vertebral body, has not been carried over into the current schedular criteria. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), the next-higher rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) notes that objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Prior to September 23, 2002, intervertebral disc syndrome that is severe with recurring attacks with intermittent relief is evaluated as 40 percent disabling; and intervertebral disc syndrome that is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief is evaluated as 60 percent disabling. 38 C.F.R. § 4.71a, DC 5293. Effective September 23, 2002, the criteria for evaluating intervertebral disc syndrome were revised. Under the revised criteria, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5293. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243. 38 C.F.R. § 4.71a, DC 5235-5243. Diagnostic Code 8510 for provides ratings for the upper radicular group for complete and incomplete paralysis of the peripheral nerves. 38 C.F.R. § 4.124a. Disability ratings of 20, 30, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of a peripheral nerve of a minor upper extremity. 38 C.F.R. § 4.124, DC 8510. A disability rating of 60 percent is warranted for complete paralysis of all shoulder and elbow movements lost or severely affected, hands and wrist movements not affected. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. 1. Prior to September 26, 2003, entitlement to a rating higher than 30 percent for the service-connected cervical spine disability. The Veteran’s service-connected cervical spine disability was rated as 30 percent disabling prior to September 26, 2003 under 38 C.F.R. 4.71a, DC 5290-5287. Turning to the evidence of record for this period on appeal, a VA radiology report dated July 2002 indicated that the Veteran had a straightening of the normal curvature of the cervical spine, compression deformity of C5 and C6 with loss of the intervertebral disc space, narrowing of the C6 to C7 disc space, the remainder of the intervertebral disc spaces were preserved and vertebral bodies maintained. There was no significant change in the x-ray studies from the most recent studies. The Veteran was afforded a VA examination in July 2002. On physical examination, the Veteran demonstrated reduced range of motion of 30 degrees of flexion, 20 degrees of extension, 30 degrees of left side rotation, and 50 degrees of right side rotation. The Veteran’s neurological examination was unchanged. However, the Veteran had a mildly positive Tinel’s on the right but was negative on the left, despite it being positive previously. No evidence of muscular atrophy was found. The Veteran reported severe pain, stiffness, numbness and tingling in his neck, spine, shoulder, and upper arms in a July 2003 statement. The Veteran was afforded a VA examination in August 2003. The Veteran reported that he had no subsequent injuries to his neck, no additional surgeries, or additional imaging studies since his last examination. The Veteran reported that he continued to have difficulty sleeping, occasional dizziness when looking up, and pain in his neck down to the trapezium. The Veteran denied radicular symptoms. On physical examination, the Veteran demonstrated reduced range of motion of 30 degrees of flexion, 20 degrees of extension, 30 degrees of left side rotation, and 50 degrees of right side rotation. The Veteran’s neurological examination was unchanged without evidence of nerve root impairment. His x-rays studies also remained unchanged. The Veteran’s primary contention in this case is that he meets the criteria for a demonstrable deformity of the cervical spine, thereby warranting an additional 10 percent rating under the former schedular criteria applicable to this period on appeal. As has been discussed above, the former schedular criteria provided that an additional 10 percent rating can be added to that for limitation of motion based upon “demonstrable deformity of vertebral body.” See 38 C.F.R. § 4.71a, DC 5285 (2002). The Veteran’s service-connected cervical spine disability has been rated as limitation of cervical spine motion under former Diagnostic Codes 5290-5287, as noted above. The assignment of a diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5286 cannot be applied in this case as it contemplates ankylosis entire spine and the Veteran’s cervical spine segment is the only portion of the spine that has been service connected. Thus, DC 5286 cannot be applied in this case. Additionally, DCs 5288, 5289, 5291, 5292, and 5294 are not applicable as they apply to service-connected disabilities of the dorsal or lumbar spine and the sacroiliac joints, respectively. The Veteran is not service-connected for any disability in these spinal segments. The former rating criteria for IVDS under DC 5293 are not applicable during this period. The Veteran was not diagnosed with intervertebral disc syndrome. See July 2002 VA examination report. Accordingly, consideration of the Veteran’s cervical spine disability under former Diagnostic Code 5293 (prior to September 23, 2002, and from September 23, 2002 to September 26, 2003) and Diagnostic Code 5243 (effective September 26, 2003) regarding intervertebral disc syndrome is not warranted. The Board declines to apply DC 5290 for this period on appeal because a higher rating can be granted under DC 5287, as discussed below. As such, the most appropriate diagnostic code for rating the Veteran’s cervical spine disability is Diagnostic Code 5287. The Veteran’s cervical spine disability appears to involve principally pain and limitation of motion, which is congruent with former Diagnostic Code 5287 for ankylosis of the cervical spine. Accordingly, the Veteran should be rated under the former Diagnostic Code 5287. Resolving all doubt in favor of the Veteran, an increased rating of 40 percent for unfavorable ankylosis under 5287 for this period on appeal is granted. The July 2002 and August 2003 VA examinations diagnose the Veteran with ankylosis of the cervical spine, but they fail to identify whether the ankylosis was favorable or unfavorable. Therefore, the benefit of the doubt will be resolved in the Veteran’s favor and the ankylosis during this period on appeal will be presumed to have been unfavorable, thus allowing for a 40 percent disability rating for the period before September 26, 2003. As discussed above, the Veteran also asserts he is entitled to an additional 10 percent rating for a demonstrable deformity of the cervical spine under DC 5285. The former schedular criteria under DC 5285 provide that in cases where “definite limitation of motion” is present, an additional 10 percent may be awarded for “demonstrable deformity of the vertebral body.” The Board believes that this is such a case. There is indeed severe and definite limitation of motion of the cervical spine present during this period on appeal, as is evidenced by the Veteran’s severely limited range of motion. Imaging studies in July 2002 specifically noted that a “compression deformity C5 and C6 with loss of the intervertebral disc space” was found. Because the medical evidence reveals deformity of the C5 and C6 level, demonstrable deformity of a vertebral body has been demonstrated, along with severe limitation of motion. An additional 10 percent rating is therefore warranted under the former schedular criteria. Whether an increased disability rating is warranted for the Veteran’s cervical spine disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45; and the Court’s holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). With respect to the former schedular criteria, the Veteran is already receiving the maximum disability rating for limitation of motion (rated as unfavorable ankylosis), consideration of the provisions of DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The consideration of the DeLuca provisions is also not required under the current schedular criteria. However even if DeLuca was applicable to the instant case, there is no indication that the Veteran’s cervical spine symptomatology warrants the assignment of a higher rating. The Veteran’s limitation of motion in his cervical spine has been painful in any motion to the point that he has been assessed as having unfavorable ankylosis of the cervical spine. See, e.g., July 2002 and August 2003 VA examination reports. The 40 percent rating assigned for the cervical spine contemplates severe limitation of motion (i.e. ankylosis) under the prior spine regulations, plus an additional 10 percent for demonstrable deformity of the spine. Therefore, the Veteran’s functional limitation due to pain has been addressed by the 40 percent rating assigned, and the assignment of any higher disability rating under 38 C.F.R. §§ 4.40, 4.45 and Deluca is not warranted. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In addition to consideration of the orthopedic manifestations of the cervical spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran reported symptoms of numbness and tingling in his neck, spine, shoulder, and upper arms during this period on appeal. The Veteran is competent to report symptoms that are observable through his senses, such as tingling and numbness. See Barr, 21 Vet. App. at 307. Although VA examiners throughout the appeal period indicated that there is no official diagnosis of radiculopathy, other competent evidence indicated that the Veteran has radiation of pain down his neck, shoulders, upper arms, and hands stemming from his cervical spine disability. In addition to the Veteran’s competent and credible lay statements of having radicular pain, the July 2002 VA examination found a positive Tinel’s sign on the right. As such, the evidence is in equipoise as to whether the Veteran has neurological manifestations in his bilateral arms secondary to his service-connected cervical spine disability. Accordingly, resolving all reasonable doubt in the Veteran’s favor and based on the lay and medical evidence, the Veteran had a neurologic impairment in both arms associated with his cervical spine disability for this period on appeal. The symptoms of the bilateral arms are analogous to, at worst, mild radiculopathy of the peripheral nerve. As such, the evidence supports a separate 20 percent rating under Diagnostic Code 8510 for radiculopathy of each upper extremity as associated with the cervical spine disability. However, an even higher rating of 30 percent is not warranted for the bilateral upper extremity radiculopathy, as the Veteran’s neurologic symptoms are only intermittent and only sensory during this period on appeal, and there is clearly no evidence of radicular impairment to a moderate degree. See 38 C.F.R. § 4.124a. Lastly, during this period on appeal, the competent evidence does not reflect any other objective neurologic abnormalities associated with the cervical spine disability to warrant any additional separate ratings. 2. Beginning September 26, 2003, entitlement to a rating higher than 30 percent for the service-connected cervical spine disability. During this period on appeal, the Veteran submitted correspondence in March 2004 that described symptoms of severe pain, stiffness, numbness and tingling in his neck, spine, shoulder, and upper arms and hands. The Veteran also reported experiencing headaches, limited range of motion, and unable to reach above his head. The pain made it difficult to sleep at night and to drive. The Veteran repeated these contentions in his October 2005 substantive appeal, via a VA Form 9. The Veteran was afforded another VA examination in October 2006. The Veteran reported that he experienced limited range of motion, stiffness in his neck, difficulty rotating his neck from side to side, and difficulty turning his head to look behind him. He reported pain with all movements of his neck. The Veteran also reported pain in his arms; however, the VA examiner indicated it did not appear to be radicular in nature. The Veteran experienced flare-ups with increased stiffness in cold weather. On physical examination, the Veteran demonstrated 30 degrees of flexion, 5 degrees of extension, 20 degrees of left and right lateral flexion, 5 degrees of left lateral rotation, and 15 degrees of right lateral rotation. The examiner noted that there was a significant loss of range of motion which was further limited by stiffness in his neck. Repeat measurements of range of motion did not demonstrate an increase in pain, weakness, or fatigue. There was no indication of weakness of the upper extremities or radiculopathy in the upper extremities. The Veteran’s deep tendon reflexes were normal bilateral. The examiner concluded that it did not appear that the Veteran’s symptoms were any more severe than what he reported at his most recent VA examination in 2003. Further, x-ray studies dated October 2006 were stable since the most recent imagining studies. The Veteran reported again in December 2009 and February 2010 that he experienced stiffness, pain, trouble sleeping due to pain, headaches, and an inability to lift his arms above his head due to his cervical spine injury. Beginning September 26, 2003, the date of the regulation change for the musculoskeletal system, the Veteran’s cervical spine disability was rated as 30 percent under the former diagnostic code, DC 5290-5287. As discussed above, the severity of the Veteran’s cervical spine disability will be analyzed under both the old and new diagnostic codes and apply whichever is more beneficial to the Veteran. The provisions of former Diagnostic Code 5285 with respect to demonstrable deformity of a vertebral body have not been carried over into the current schedular criteria. Under the current schedular criteria, the 40 percent disability rating which is now assigned represents the highest disability rating possible in the absence of service-connected disability of an additional spinal segment. While a 50 percent rating is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine, such requires service-connected disability beyond the cervical spine. Such is not present in this case. Thus, the former rating criteria is more beneficial to apply to this Veteran for this period on appeal. Additionally, under the new criteria, the Veteran has neither been diagnosed with IVDS nor is there evidence of incapacitating episodes. Thus, rating the Veteran under DC 5243 would not yield a higher rating than already assigned. Under the former criteria, and resolving all doubt in favor of the Veteran, the Board assigns an increase in rating to 40 percent under 38 C.F.R. 4.71a, DC 5287 for the period under question. The Veteran’s range of cervical spine motion remained similar to the range of motion exhibited during the examinations in the prior period, and the examiner did not note whether this was favorable or unfavorable ankylosis. Thus, resolving the benefit of the doubt in the Veteran’s favor, the ankylosis will be rated as unfavorable. As such, the Veteran is granted a 40 percent disability rating for the unfavorable ankylosis of the cervical spine. Furthermore, the medical evidence indicates that the deformity of the C5 and C6 vertebrae and the limitation of motion continued to be present during this period on appeal. While there is no evidence of an affirmative finding of demonstrable deformity on imaging report during this period on appeal, there is also no affirmative findings that the demonstrable deformity resolved or healed, and this type of damage is unlikely to have healed spontaneously more than 40 years after the initial injury. Finally, the imaging studies performed in October 2006 were compared to previous imaging studies, and the radiologist found the cervical spine disability to be “stable.” The evidence is at least in equipoise that the demonstrable deformity noted on previous imaging studies remains. An additional 10 percent rating is therefore warranted under the former schedular criteria found in 38 C.F.R. 4.71a, DC 5285. Whether an increased disability rating is warranted for the Veteran’s cervical spine disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45; and the Court’s holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) was considered. With respect to the former schedular criteria, the Veteran is in receipt the maximum disability rating for limitation of motion (rated as unfavorable ankylosis), consideration of the provisions of DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Likewise, under the current schedular criteria, the Veteran would be in receipt of the maximum possible rating available in the absence of a service-connected disability of another segment of the spine (i.e., service-connected disability of the thoracic or lumbar spine). The consideration of the DeLuca provisions is also not required under the current schedular criteria. However even if DeLuca was applicable to the instant case, there is no indication that the Veteran’s cervical spine symptomatology warrants the assignment of a higher rating. The Veteran’s limitation of motion in his cervical spine has been painful in any motion to the point that he has been assessed as having unfavorable ankylosis of the cervical spine. See, e.g., October 2006 VA examination report. The 40 percent rating assigned for the cervical spine contemplates severe limitation of motion, ankylosis which is no movement, under the prior spine regulations, plus an additional 10 percent for demonstrable deformity of the spine. Therefore, the Veteran’s functional limitation due to pain has been addressed by the 40 percent rating assigned, and the assignment of any higher disability rating under 38 C.F.R. §§ 4.40, 4.45 and Deluca is not warranted. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the issue of any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran reported symptoms of numbness and tingling in his neck, spine, shoulder, and upper arms and hands during this period on appeal. The Veteran is competent to report symptoms that are observable through his senses, such as tingling and numbness. See Barr, 21 Vet. App. at 307. Although the VA examiner throughout the appeal period indicated that there is no official diagnosis of radiculopathy, there is other competent evidence of record that the Veteran has radiation of pain, numbness, and tingling down his neck, shoulders, upper arms, and hands stemming from his cervical spine disability. As such, the evidence is in equipoise as to whether the Veteran has neurological manifestations in his bilateral arms secondary to his service-connected cervical spine disability. Accordingly, resolving all reasonable doubt in the Veteran’s favor and based on the lay and medical evidence, the Veteran had neurologic impairment in both arms associated with his cervical spine disability for this period on appeal. The symptoms of the bilateral arms are analogous to, at worst, mild radiculopathy of the peripheral nerve. Since the evidence indicates that the involvement is wholly sensory and there is no objective data indicating a higher level of severity, the disability will be rated as mild. See 38 C.F.R. § 4.124a. As such, the evidence supports a separate 20 percent rating under Diagnostic Code 8510 for radiculopathy of each upper extremity as associated with the cervical spine disability. However, an even higher rating of 30 percent is not warranted for the bilateral upper extremity radiculopathy, as the Veteran’s neurologic symptoms are only intermittent and only sensory during this period on appeal, and there is clearly no evidence of radicular impairment to a moderate degree. See 38 C.F.R. § 4.124a. Lastly, during this period on appeal, the competent evidence does not reflect any other objective neurologic abnormalities associated with the cervical spine disability to warrant any additional separate ratings. 3. Beginning December 2, 2010, entitlement to a higher rating than 40 percent for the service-connected cervical spine disability. For this period on appeal, the Veteran’s cervical spine is currently rated at 40 percent disabling under the revised rating criteria found at 38 C.F.R. 4.71a, DC 5242. The Veteran contends that his cervical spine disability is more severe and warrants a higher rating. As noted above, whether the Veteran is entitled to a higher rating under the former or revised diagnostic codes will be analyzed. Turning to the evidence at hand, the Veteran was afforded a VA examination in December 2010. The Veteran again reported of severe limitation of motion in his neck, pain, difficulty sleeping, stiffness, and numbness and tingling in the hands. No radicular symptoms were found. The Veteran also reported numbness and tingling in his back and neck when he uses his arms over his head and feels as if he may lose consciousness. The Veteran reported looking at the ground when he walks and has limited ability to drive. The Veteran denied flare-ups or incapacitating events, but reported increased stiffness and pain. The Veteran did not use braces. On physical examination, atrophy of the paraspinals in the cervical area and atrophy of the trapezius bilaterally was found. The Veteran exhibited decreased motor function in the deltoids bilaterally (4 out of 5), but all other upper extremity muscle groups were normal bilaterally (5 out of 5). The Veteran’s deep tendon reflexes were at 1+ at the biceps, triceps, and brachial radialis bilaterally. He had a negative Hoffman’s sign, negative Tinel’s sign, and negative Phalen’s sign. No intrinsic atrophy in the hands were found and distal pulses were 2+ and equal bilaterally. Tenderness to palpation was found bilaterally on the trapezius, but there was no winging on the scapula. The Veteran’s range of motion was 35 degrees of flexion, but with severe stiffness and restriction of motion, but without objective evidence of pain, fatigue, weakness, or incoordination with repetitive motion. The Veteran exhibited 35 degrees of extension in both active and passive motion testing. The Veteran’s lateral motion was only a trace and rotation was to the right 15 degrees and to the left to a neutral position only. No pain, fatigue, weakness or incoordination was seen with repetitive motion testing. The Veteran was required to lean back to see in front of him while walking. Sensation was intact and distal pulses were 2+ and equal. Additional x-ray studies performed in December 2010 were unchanged from previous studies, except for increased nuchal calcification degenerative changes. The examiner also noted that after reviewing the previous x-ray studies, the compression deformities at C5-C6 due to ankylosis of the joint with large anterior osteophytes and degenerative changes were difficult to see. The examiner concluded that the Veteran had almost total loss of motion of the cervical spine due to ankylosis. An addendum opinion was obtained in June 2011, and the VA examiner determined that the Veteran had unfavorable ankylosis of the cervical spine. In March 2012, the Veteran was provided a private MRI study. The MRI showed multilevel spondylosis of the cervical spine with moderate central stenosis. The thoracic vertebral bodies were of normal height, alignment, and signal. Anterior osteophytosis was seen throughout the thoracic spine. In a letter dated March 2013, the Veteran reported that the severity of his cervical spine disability had increased. He reported pain, stiffness, numbness, tingling, weakness in his arms and hands. The Veteran experienced chronic headaches, limited range of motion of his neck, and difficulty lifting or reaching for objects over his head. The Veteran describes difficulty driving. He experienced a sensation of jumping and moving nerves in his arms all day and night which results in difficulty sleeping. The Veteran reported in May 2015 correspondence that he experienced muscle spasms in his arms and hands that caused him to twitch. The Veteran was afforded a VA examination in June 2015. The Veteran again reported severe limitation of motion and stiffness in the neck. He reported numbness and tingling in his hands, back, and neck, but the examiner determined the Veteran had no radicular symptoms. The Veteran reported difficulty sleeping due to pain, stiffness, and achiness, which he experienced all the time. The Veteran felt as if he might lose consciousness if he lifted his arms over his head. The Veteran was limited to looking at the ground when he walked and used multiple mirrors while driving because of the inability to turn around using his neck. The Veteran also reported headaches. Forward flexion was measured at 45 degrees, extension to 0 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 10 degrees. Pain was noted on examination, but the examiner found it did not contribute to additional functional loss. Repeated range of motion testing was performed, but no additional loss of function was noted after three repetitions. The Veteran was observed after repeated use over time, and the examiner found that pain, weakness, fatiguability, or incoordination did not significantly limit the Veteran’s functional ability. The Veteran denied localized tenderness, guarding, or muscle spasms. The examiner reported that additional factors contributing to the Veteran’s disability were less movement than normal due to “ankylosis, adhesions, etc.” Muscle strength was normal throughout without evidence of muscle atrophy. Reflex and sensory examinations were normal without evidence of radiculopathy or any other neurological abnormalities. Unfavorable ankylosis of the entire cervical spine was noted. No IVDS was found. The Veteran did not use assistive devices, such as neck or leg braces. Imaging studies confirmed arthritis of the cervical spine with more than 50 percent vertebral height intact. In June 2015, the Veteran submitted a letter that asserted he experienced daily pain, stiffness, numbness, tingling, twitching, and weakness in his arms and hands. His fingertips felt warm, and he had pain in his lower back, shoulders, and neck. He reported chronic headaches, limited movement of his neck, inability to lift anything heavy above his head, difficulty driving due to limited motion of his head, muscle spasms which cause twitching in his arms and hands, increased weakness in his hands and fingers resulting in difficulty gripping objects, and difficulty sleeping. X-ray studies in July 2015 showed moderately prominent changes of cervical spondylosis at C5-6 and C6-7 levels and minimum degenerative changes at the upper and mid cervical spine. A February 2016 CT scan showed multilevel cervical spine degenerative changes with severe spinal stenosis and severe bilateral neural foraminal stenosis, as well as ossification of the posterior longitudinal ligament from C2 to C5 which contributed to mild to moderate spinal canal stenosis. No significant femoral stenosis from C2-C5 was found. August 2015 X-ray studies again confirmed cervical spondylosis. In July 2015, the Veteran reported a painful knot on the back of his neck. Additional treatment notes indicate the Veteran was referred to neurosurgeon, but that appointment was cancelled when another type of test was requested. The Veteran was afforded a VA examination in April 2016. The Veteran had the same complaints as the previous examination. Forward flexion was measured at 45 degrees, extension to 0 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation to 40 degrees. No pain was noted on examination. Repeated range of motion testing was performed but no additional loss of function was noted after three repetitions. The examiner found that pain, weakness, fatiguability, and/or incoordination did not significantly limit the Veteran’s functional ability after repeated use over time. No tenderness, guarding, or muscle spasm of the cervical spine was reported. No ankylosis was found. Muscle strength was normal throughout without evidence of muscle atrophy. Reflex and sensory examinations were normal without evidence of radiculopathy or any other neurological abnormalities. No IVDS was found. The examiner noted that the Veteran did not use assistive devices, such as neck or leg brace. Imaging studies confirmed arthritis and that he did not have vertebral height loss of 50 percent or more in the cervical spine. The Veteran’s cervical spine disability was rated as 40 percent under the revised diagnostic code, DC 5242 for this period on appeal. As discussed above, the severity of the Veteran’s cervical spine disability will be analyzed under both the old and new diagnostic codes and apply whichever is more beneficial to the Veteran. Under the current schedular criteria, the 40 percent disability rating represents the highest disability rating possible in the absence of service-connected disability of an additional spinal segment. While a 50 percent rating is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine, such requires service-connected disability beyond the cervical spine. As the Veteran is only service-connected for the cervical spine disability, the 50 percent and 100 percent ratings are not for application. The provisions of former Diagnostic Code 5285 with respect to demonstrable deformity of a vertebral body have not been carried over into the current schedular criteria. Under the former criteria, a 40 percent disability rating represents the highest disability rating possible in the absence of service-connected disability of an additional spinal segment under DC 5287 for unfavorable ankylosis. The Veteran’s range of motion remained similar to the range of motion exhibited during the examinations in the prior period, and the examiners in the June 2011 addendum medical opinion and the June 2015 VA examinations noted the Veteran had unfavorable ankylosis of the entire cervical spine. Although the April 2016 VA examiner reported that the Veteran did not have ankylosis of the cervical spine, higher probative weight is assigned to the June 2011 addendum opinion and the June 2015 VA examination than the April 2016 VA examination as the April 2016 examination appears to be grossly different than all the other examination findings during the entire appellate period and is unlikely to be accurate. Furthermore, under the old rating code, as discussed above, while there is no evidence of an affirmative finding of demonstrable deformity on imaging reports during this period on appeal, there is also no affirmative findings that the demonstrable deformity found on previous imaging reports had resolved or healed. The report of imaging studies associated with the December 2010 VA examination indicate that the C5 and C6 compression deformities “were difficult to see” on the December 2010 x-ray studies, but also indicated that the December 2010 x-ray studies were unchanged from the 2006 x-rays studies. The evidence is at least in equipoise that the demonstrable deformity noted on previous imaging studies remains. Thus, if the Veteran is rated under the former rating criteria, he should be afforded an additional 10 percent rating under 38 C.F.R. 4.71a, DC 5285. Therefore, the former rating criteria is applied as it is more beneficial to the Veteran. A higher rating than 40 percent rating under 38 C.F.R. 4.71a, DC 5287 is denied. However, an additional 10 percent rating is granted under the former DC 5285 for the demonstrable deformity of the C5 and C6, which resulted from the fracture in service. Whether an increased disability rating is warranted for the Veteran’s cervical spine disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45 and the Court’s holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) was considered. With respect to the former schedular criteria, the Veteran is already receiving the maximum disability rating for limitation of motion (rated as unfavorable ankylosis) and consideration of the provisions of DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Likewise, under the current schedular criteria, the Veteran would be in receipt of the maximum possible rating available in the absence of a service-connected disability of another segment of the spine and consideration of the DeLuca provisions is also not required. However even if DeLuca was applicable to the instant case, there is no indication that the Veteran’s cervical spine symptomatology warrants the assignment of a higher rating. The Veteran’s limitation of motion in his cervical spine has been painful in any motion to the point that he has been assessed as having unfavorable ankylosis of the cervical spine. See, e.g., December 2010 and June 2015 VA examination reports. The 40 percent rating assigned for the cervical spine contemplates severe limitation of motion, ankylosis which is no movement, under the prior spine regulations, plus an additional 10 percent for demonstrable deformity of the spine. Therefore, the Veteran’s functional limitation due to pain has been addressed by the 40 percent rating assigned, and the assignment of any higher disability rating under 38 C.F.R. §§ 4.40, 4.45 and Deluca is not warranted. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the issue of any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran reported symptoms of numbness and tingling in his neck, spine, shoulder, and upper arms and hands during this period on appeal. The Veteran is competent to report symptoms that are observable through his senses, such as tingling and numbness. See Barr, 21 Vet. App. at 307. Although the VA examiner throughout the appeal period indicated that there is no official diagnosis of radiculopathy, there is other competent evidence of record that the Veteran has radiation of pain, numbness, and tingling down his neck, shoulders, upper arms, and hands stemming from his cervical spine disability. As such, the evidence is in equipoise as to whether the Veteran has neurological manifestations in his bilateral arms secondary to his service-connected cervical spine disability. Resolving all reasonable doubt in the Veteran’s favor and based on the lay and medical evidence, the Veteran had neurologic impairment in both arms associated with his cervical spine disability for this period on appeal. The symptoms of the bilateral arms are analogous to, at worst, mild radiculopathy of the peripheral nerve as the evidence of record indicates that the involvement is wholly sensory, and there is no objective data indicating a higher level of severity, the disability will be rated as mild. See 38 C.F.R. § 4.124a. As such, the evidence supports a separate 20 percent rating under Diagnostic Code 8510 for radiculopathy of each upper extremity as associated with the cervical spine disability. However, an even higher rating of 30 percent is not warranted for the bilateral upper extremity radiculopathy, as the there is no evidence of radicular impairment to a moderate degree. See 38 C.F.R. § 4.124a. Lastly, during this period on appeal, the competent evidence does not reflect any other objective neurologic abnormalities associated with the cervical spine disability to warrant any additional separate ratings. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. Entitlement to a TDIU is remanded. A remand is necessary for the RO to implement the Board’s decisions herein and to develop the derivative TDIU claim as he now will meet the schedular criteria for a TDIU. The matter is REMANDED for the following action: 1. Implement the Board’s decision herein granting a 40 percent rating for the service-connected cervical spine disability; a separate 20 percent rating for right upper extremity radiculopathy; a separate 20 percent rating for left upper extremity radiculopathy; and a separate 10 percent rating for a demonstrable deformity of the C5 and C6 cervical vertebrae due to fracture in service for the entire period on appeal. 2. Obtain any pertinent VA treatment records and associate them with the claims file. 3. Attention is called to the two claims that have been referred which are entitlement to service connection for an acquired psychiatric disorder and service connection for a headache disability as secondary to the service-connected cervical spine disability. 4. Send the Veteran the (i) appropriate notice as to how to substantiate a claim for TDIU, and (ii) provide him with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. (Continued on the next page)   5. Then, after completing any other development that may be warranted, readjudicate the TDIU claim. If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel