Citation Nr: 20046461 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 13-36 070 DATE: July 10, 2020 ORDER The reduction from a 40 to 20 percent disability rating for lumbar spine disability effective May 1, 2016 was not proper; the 40 percent rating is restored. Entitlement to a rating in excess of 40 percent disabling for lumbar spine disability is denied. Entitlement to a rating in excess of 20 percent disabling for cervical spine disability is denied. Prior to December 4, 2017, entitlement to a compensable separate rating for right upper extremity (RUE) radiculopathy is denied. As of December 4, 2017, entitlement to a rating in excess of 20 percent disabling for RUE radiculopathy is denied. Prior to December 4, 2017, entitlement to a compensable separate rating for left upper extremity (LUE) radiculopathy is denied. As of December 4, 2017, entitlement to a rating in excess of 20 percent disabling for LUE radiculopathy is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The February 2016 rating decision reducing the Veteran’s compensation for lumbar spine disability to 20 percent effective May 1, 2016, was not based on an actual improvement in the Veteran’s lumbar spine disability. 2. Throughout the period on appeal, the lumbar spine disability was not manifested by ankylosis or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. Throughout the period on appeal, the cervical spine was not manifested by forward flexion limited to 15 degrees or less, ankylosis, or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 4. Prior to December 4, 2017, the Veteran’s RUE radiculopathy did not more nearly approximate mild incomplete paralysis of the upper radicular group. 5. As of December 4, 2017, the Veteran’s RUE radiculopathy more nearly approximated mild incomplete paralysis of the upper radicular group; moderate incomplete paralysis with marked muscular atrophy was not shown. 6. Prior to December 4, 2017, the Veteran’s RUE radiculopathy did not more nearly approximate mild incomplete paralysis of the upper radicular group. 7. As of December 4, 2017, the Veteran’s RUE radiculopathy more nearly approximated mild incomplete paralysis of the upper radicular group; moderate incomplete paralysis with marked muscular atrophy was not shown. CONCLUSIONS OF LAW 1. The reduction of the rating for lumbar spine disability from 40 percent to 20 percent, effective May 1, 2016, was not proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating in excess of 40 percent disabling for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DC 5237. 3. The criteria for a rating in excess of 20 percent disabling for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5242. 4. Prior to December 4, 2017, the criteria for a separate compensable rating for RUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DCs 8510-8519. 5. As of December 4, 2017, the criteria for a rating in excess of 20 percent disabling for RUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DCs 8510-8519. 6. Prior to December 4, 2017, the criteria for a separate compensable rating for LUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DCs 8510-8519. 7. As of December 4, 2017, the criteria for a rating in excess of 20 percent disabling for LUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DCs 8510-8519. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to May 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a February 2016 rating decision reduced the rating for the Veteran’s lumbar spine disability from 40 to 20 percent effective May 1, 2016. The Board additionally notes that a January 2019 rating decision granted separate 20 percent ratings for bilateral upper extremity (BUE) radiculopathy effective December 4, 2017. Accordingly, the Board has recharacterized those issues as noted above. In November 2016, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board remanded this case in September 2017, and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. The Board notes that the requested VA examination reports were obtained in December 2017 and have been associated with the claims file. The Board notes that in a February 2019 letter, the Veteran asserted that he was unable to work due to his service-connected lumbar and cervical spine disabilities. As such, a claim for a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim is addressed in the Remand section below. Rating Reduction The Veteran seeks restoration of the 40 percent disability rating for his service-connected lumbar spine disability. He contends that the reduction of the evaluation from 40 to 20 percent was improper. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). The Board notes that there are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, reduction notification procedures were required as the February 2016 rating decision that implemented the rating reduction changed the Veteran’s overall disability rating, which was reduced from 60 percent to 50 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were therefore applicable in this case. The record includes an October 2015 rating decision that proposed reducing the rating of the Veteran’s service-connected lumbar spine disability from 40 percent disabling to 20 percent. The Veteran was notified of the proposed rating reduction in November 2015. The November 2015 notice enclosed the October 2015 rating decision that set forth all material facts and reasons for the proposed rating reductions. Additionally, the November 2015 notice properly notified the Veteran of the 60 day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105(i), and what evidence he could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran’s rating reduction. Therefore, the remaining question is the propriety of the reduction. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). The criteria governing certain rating reductions for certain service-connected disabilities are found under 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. In the present case, the 40 percent evaluation for the service-connected lumbar spine disability had been in effect since October 2005, and thus had been in effect for over 9 years at the time the reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) apply. Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. The Veteran’s lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provide that a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. The Board notes that the October 2015 rating decision noted the following evidence in support of the proposed rating reduction: August 2012 and December 2014 VA examination reports showing sustained improvement in forward flexion beyond 30 degrees. Additionally, the February 2016 rating decision that effectuated the rating reduction cited the same evidence listed in the October 2015 rating decision, and further noted that a review of the medical evidence did not show that an evaluation higher than 20 percent was warranted. However, at the time of the October 2015 and February 2016 rating decisions, the evidence of record included a more recent August 2015 VA examination which included ROM testing showing that the lumbar spine was manifested by forward flexion limited to, at most, 30 degrees. While the examiner noted that it was unknown if the Veteran was “giving his full effort during ROM testing,” the examiner did not provide any further explanation. Additionally, the examination report further shows that the Veteran was unable to currently perform repetitive-use testing due to pain. The Board notes that the October 2015 rating decision recognized the August 2015 VA examination, and stated that since it was noted that full effort might not have been given, and that the examination was medically inconsistent with the Veteran’s statements concerning functional loss over time, that the rating decision was not probative as to whether sustained improvement had been shown. The AOJ appears to state that the Veteran had misrepresented the current severity of his lumbar spine disability during the August 2015 VA examination. However, as noted above, the examiner did not offer an explanation as to the statement provided. Therefore, the statement that it was “unknown whether the Veteran was giving his full effort” during the ROM testing portion of the examination is speculative. In this regard, the Board notes that it cannot attempt to interpret or extrapolate the unexplained statement provided by the examiner on its own. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). At the very least, the AOJ should have obtained an addendum examination report for clarification as to whether the documented ROM testing results accurately portrayed the Veteran’s current level of disability. Therefore, in providing the Veteran with the benefit-of-the-doubt, and after a review of the evidence of record at the time of the February 2016 rating decision, the Board finds that the preponderance of the evidence did not establish sustained improvement in the Veteran’s lumbar spine disability. Accordingly, the reduction in the rating from 40 to 20 percent was not proper and the 40 percent rating is restored. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Lumbar spine disability The Veteran filed an increased rating claim for his service-connected lumbar spine disability in April 2012. The lumbar spine disability is rated 40 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5237. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities are as provided above. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (4). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as 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; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Since filing his increased rating claim, the Veteran underwent a VA lumbar spine examination in August 2012. The examiner noted a diagnosis for lumbosacral strain. The Veteran reported worsening pain but denied any radiation of pain into his legs. He did report flare-ups caused by heavy activity and worse at night while lying down. ROM testing revealed forward flexion to 60 degrees with pain at end of ROM. Following repetitive-use testing, forward flexion increased to 90 degrees. The examiner noted functional loss due to less movement than normal and pain on movement. In addition, the examiner also noted that the Veteran had guarding or muscle spasms that did not result in abnormal gait or spinal contour. Muscle strength, reflex and sensory testing were normal. The lumbar spine was not found manifested by radiculopathy or other neurological abnormalities. The examiner further found that the lumbar spine was manifested by IVDS with at least 1 week, but less than 2 weeks, of incapacitating episodes over the past 12 months. The Veteran underwent another VA lumbar spine examination in December 2014. The examiner noted a diagnosis for lumbosacral strain. The Veteran reported intermittent symptoms which had been constant for the past few years. He denied any radicular symptoms. The Veteran also denied having any flare-ups or any functional loss. ROM testing revealed forward flexion to 70 degrees. Pain was noted during ROM testing which did not result in functional loss. The Veteran was able to perform repetitive-use testing with no additional loss in ROM. The examiner also noted that the Veteran was being examined immediately after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability. The Veteran was noted to have muscle spasms that did not result in an abnormal gait or spinal contour. Muscle strength, reflex and sensory testing were normal. The lumbar spine disability was not found manifested by radiculopathy or ankylosis. The Veteran denied any other neurological abnormalities such as bowel or bladder problems. The lumbar spine disability was found not manifested by IVDS. At an August 2015 VA examination, the examiner noted a diagnosis for lumbosacral strain and degenerative arthritis of the spine. The Veteran denied having flare-ups or any functional loss. ROM testing revealed forward flexion to 30 degrees and extension to 10 degrees. The examiner noted that it was unknown if the Veteran was giving his full effort during ROM testing. The Veteran was noted as unable to perform repetitive-use testing due to pain. The examiner noted that repeated use over time did not result in functional loss. Muscle strength, reflex and sensory testing were normal. No radiculopathy was found. No ankylosis was found. The Veteran’s lumbar spine was not found manifested by IVDS. In his February 2016 VA Form 9, Substantive Appeal, the Veteran asserted that his lumbar spine forward flexion was less than 30 degrees. An August 2017 private medical record noted normal lumbar spine ROM. The Veteran last underwent a VA lumbar spine examination in December 2017. The examiner noted a diagnosis for lumbosacral strain and scoliosis. The Veteran reported flare-ups described as increased pain with walking or standing for long periods of time, and increased pain with bending or lifting objects of any significant weight. An inability to lift or carry heavy objects and an inability to walk or stand for long periods of time were also noted as functional impairments. ROM testing revealed forward flexion to 65 degrees and extension to 0 degrees. Pain was noted during all ROM testing which the examiner noted did not result in functional loss. The Veteran was able to perform repetitive-use testing with no further loss in ROM. The examiner also noted the Veteran was being examined immediately after repetitive use over time, but that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use. Flare-ups were not found to result in further functional loss. The Veteran’s lumbar spine disability was not found manifested by ankylosis. Muscle strength, reflex and sensory testing was normal. The examiner found that the Veteran’s lumbar spine was not manifested by radiculopathy or IVDS. The Veteran denied any other neurological abnormalities such as bowel or bladder problems. Lastly, the Board notes that in a February 2019 letter, the Veteran asserted that the December 2017 VA examination report documented unfavorable ankylosis of his entire thoracolumbar spine. After a review of the evidence of record, the Board finds that entitlement to a rating in excess of 40 percent disabling is not warranted. In this regard, the Board notes that a 40 percent disability rating represents the highest available rating based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. Therefore, based on ROM findings, the Veteran is currently in receipt of the highest rating available. The Board has considered higher ratings; however, the evidence of record establishes that the Veteran’s lumbar spine disability has not been manifested by ankylosis or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board does recognize the February 2019 letter from the Veteran in which he asserted that the December 2017 VA examination documented unfavorable ankylosis of the entire thoracolumbar spine. However, a review of that examination report shows that the examiner found the Veteran’s lumbar spine was specifically not manifested by ankylosis. Therefore, the Board finds the Veteran’s assertion without merit. Accordingly, based on the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that a rating in excess of 40 percent is not warranted. Lastly, the Board notes that the evidence of record does not show any other related neurological disability such as radiculopathy, bowel or bladder problems. Accordingly, a separate rating for a neurological disability is not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Cervical Spine Disability and BUE Radiculopathy The Veteran filed an increased rating claim for his service-connected cervical spine disability in April 2012. The Board notes that at the time the Veteran filed his increased rating claim, the Veteran was in receipt of a 20 percent disability rating which included consideration of his service-connected BUE radiculopathy. Separate ratings for the BUE radiculopathy were not awarded until a January 2019 rating decision which assigned separate 20 percent evaluations effective December 4, 2017, the date of a VA examination. Since filing his increased rating claim, a May 2012 private medical record shows the Veteran’s ROM was manifested by flexion to 30 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 25 degrees, and bilateral lateral rotation to 50 degrees. Testing was also noted to reveal LUE nerve root compression. The Veteran underwent a VA cervical spine examination in August 2012. The examiner noted a diagnosis for cervical strain. The Veteran reported worsening pain, but denied any pain in his arms. He did report flare-ups described as pain worse at night while lying down and with heavy activity. ROM testing revealed forward flexion to 45 degrees, extension to 30 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 50 degrees. Pain was noted at end of ROM. Following repetitive-use testing ROM remained the same except for extension which reduced to 20 degrees. The examiner noted functional loss due to pain on movement. The examiner also noted that the Veteran had guarding or muscle spasms that did not result in an abnormal gait or spinal contour. Muscle strength, reflex and sensory testing was normal. The cervical spine was not found manifested by radiculopathy or other neurological abnormalities. The examiner further found that the cervical spine was manifested by IVDS with at least 1 week, but less than 2 weeks of incapacitating episodes over the past 12 months. In June 2013, the Veteran reported worsening neck pain with intermittent tingling and numbness in his right hand. Additionally, in his December 2013, VA Form 9, Substantive Appeal, the Veteran asserted an increase in his RUE radiculopathy. The Veteran underwent another VA cervical spine examination in December 2014. The examiner noted a diagnosis for cervical strain. The Veteran denied any myelopathic or radicular symptoms. He also denied any flare-ups or functional loss. ROM testing revealed forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, and bilateral lateral rotation to 60 degrees. Pain was noted during ROM, but was not found to result in or cause functional loss. The Veteran was able to perform repetitive-use testing with no additional loss in ROM. The examiner also noted that the Veteran was being examined immediately after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability. The Veteran was noted to have muscle spasms that did not result in an abnormal gait or spinal contour. Muscle strength, reflex and sensory testing were normal. The cervical spine disability was not found manifested by radiculopathy, ankylosis or IVDS. The Veteran denied any other neurological abnormalities such as bowel or bladder problems. A January 2015 private medical record shows the Veteran reported neck pain the past two years with LUE symptoms of numbness, tingling and weakness. At an August 2015 VA examination, the examiner noted a diagnosis for degenerative arthritis. The Veteran denied any flare-ups or functional loss. ROM testing revealed forward flexion to 20 degrees and extension to 0 degrees. The examiner noted that it was unknown if the Veteran was giving his full effort during ROM testing. The examiner also noted that the Veteran’s abnormal ROM contributed to functional loss due to interference with activities of daily living. The Veteran was able to perform repetitive-use testing with no additional loss of ROM. Muscle strength and reflex testing was normal. Sensory testing revealed decreased left hand/finger sensation. No radiculopathy or ankylosis was found. The cervical spine disability was not manifested by IVDS. The Veteran denied any other neurological abnormalities such as bowel or bladder problems. In a February 2016 VA Form 9, the Veteran asserted that his cervical spine forward flexion was less than 15 degrees. The Veteran also asserted BUE radiculopathy symptoms of severe numbness in bilateral arms, shoulders and hands. Additionally, a February 2016 VA medical record shows the Veteran reported that his hands and arms were sometimes manifested by numbness and tingling. BUE radiculopathy was noted as suspected. In October 2016, a VA medical record shows the Veteran complained of neck pain with numbness in his hands. BUE radiculopathy was again noted as suspected. An August 2017 private medical record noted normal cervical spine ROM. In October 2017, a private medical record shows the Veteran currently reported left sided neck pain with pain rated a 7 on a scale to 10. Pain was described as intermittent and worse in the morning and at night. The Veteran also reported pain described as dull/aching and sharp/stabbing, stiffness, burning and righthand numbness. ROM testing was noted as within full limits for flexion. Rotation was noted as decreased by 50 percent bilaterally, lateral flexion decreased by 80 percent bilaterally, and extension decreased by 50 percent bilaterally. The Veteran last underwent a VA cervical spine examination in December 2017. The examiner noted a diagnosis for intervertebral disc syndrome. The Veteran reported flare-ups with increased symptoms when lifting objects of any significant weight and increased pain when lying on his left side. The Veteran also reported functional loss resulting in an inability to lift or carry heavy objects or perform high impact activities. ROM testing revealed forward flexion to 30 degrees, extension to 0 degrees, right lateral flexion to 15 degrees, left lateral flexion to 5 degrees, right lateral rotation to 40 degrees and left lateral rotation to 20 degrees. Pain was noted during ROM testing, but did not result in or cause functional loss. The Veteran was noted as able to perform repetitive-use testing with no additional loss in ROM. The examiner further noted that the Veteran was being examined immediately after repetitive use over time, and that pain, weakness, fatigability or incoordination did not significantly limit functional ability. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability during flare-ups. The Veran denied any neurological abnormalities such as bowel or bladder problems. No ankylosis was found. The examiner noted the Veteran had IVDS, but that his symptoms did not require bed rest prescribed by a physician or treatment by a physician in the past 12 months. Muscle strength testing was normal except for active movement against some resistance during left wrist extension, left finger extension, and left finger abduction. Reflex and sensory testing was normal. The examiner noted BUE radiculopathy symptoms affecting the upper radicular nerve group including mild bilateral numbness, and that the severity of the BUE radiculopathy was mild. An October 2018 private chiropractic medical record noted normal ROM of the cervical spine including flexion to 45 degrees and extension to 15 degrees. Deep tendon reflex testing was normal bilaterally. The Board notes that in a February 2019 letter, the Veteran asserted that the December 2017 VA examination report documented unfavorable ankylosis of his entire cervical spine. The Board will first address the Veteran’s cervical spine disability. The Veteran’s cervical spine disability is rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5242. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. In addition to the rating criteria for the spine noted in the section above, the diagnostic code criteria pertinent to cervical spine disabilities provides that a 20 percent rating is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted when there is 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. 38 C.F.R. § 4.71a. With regard to the Veteran’s cervical spine disability, the Board finds that a rating in excess of 20 percent is not warranted. In this regard, the evidence of record does not show a cervical spine disability manifested by forward flexion limited to 15 degrees or less, or ankylosis. The Board recognizes the Veteran’s assertion that his cervical spine disability had been manifested by forward flexion less than 15 degrees. However, the evidence of record, including the private medical records submitted by the Veteran, clearly show that throughout the entire period on appeal, his cervical spine disability was manifested by, at worst, forward flexion to 20 degrees. See August 2015 VA Examination. Additionally, more recent private medical records show normal forward flexion ROM. See August 2017, October 2017, and October 2018 private medical records. Therefore, a rating in excess of 20 percent based on loss of motion is not warranted. The Board further recognizes the February 2019 letter from the Veteran in which he asserted that the December 2017 VA examination documented unfavorable ankylosis of the entire cervical spine. However, a review of that examination report shows that the examiner found the Veteran’s cervical spine was specifically not manifested by ankylosis. Therefore, the Board finds the Veteran’s assertion without merit. The Board notes that the Veteran’s cervical spine disability has not been found manifested by IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, rating the Veteran’s cervical spine disability pursuant to IVDS does not provide him with a more beneficial outcome. The Board further notes that the Veteran’s cervical spine disability has not been found manifested by any associated neurological abnormalities other than BUE radiculopathy such as a bladder or bowel disorder. Accordingly, separate ratings based on those conditions are not warranted. Therefore, throughout the period on appeal, the Board finds that the preponderance of the evidence is against the assignment of rating in excess of 20 percent for the Veteran’s service-connected cervical spine disability. Turning to the Veteran’s service-connected BUE radiculopathy, he is currently rated under 38 C.F.R. § 4.124a, DC 8714, which evaluates paralysis of the musculospiral nerve. Mild incomplete paralysis of either extremity is rated 20 percent disabling, moderate incomplete paralysis of the affective nerve is rated 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity, severe incomplete paralysis is rated 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity, and complete paralysis of the affected nerve is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as “severe,” “moderate,” and “mild” 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, 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. While the AOJ rated the Veteran’s BUE radiculopathy under DC 8714 for the musculospiral nerve, the December 2017 VA examiner indicated the Veteran’s BUE radiculopathy affected the upper radicular group, which is rated under DC 8510, 8610 and 8710. Under DC 8510, which evaluates paralysis of the upper radicular group, mild incomplete paralysis of either extremity is rated 20 percent disabling, moderate incomplete paralysis of the affective nerve is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis is rated 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity, and complete paralysis of the affected nerve is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. As such, it is more favorable to the Veteran to rate his BUE radiculopathy under DC 8510. Applying the regulations to the facts in the case, prior to December 4, 2017, the Veteran’s treatment records do not show BUE radiculopathy findings that would warrant separate compensable ratings. In this regard, prior to the December 2017 VA examination, none of the previous three VA examinations found the Veteran’s cervical spine disability manifested by radiculopathy. While the Board does recognize that medical records during this time period did note intermittent reports of tingling and numbness, including the August 2015 VA examination which noted decreased left hand/finger sensation, diagnostic testing conducted during the August 2012, December 2014 and August 2015, VA examinations did not reveal organic changes consistent with radiculopathy. Therefore, prior to December 4, 2017, the Board finds that a separate compensable rating for BUE radiculopathy is not warranted. Turning to the period on appeal as of December 4, 2017, the evidence of record shows that the Veteran’s BUE radiculopathy more nearly approximated mild incomplete paralysis of the upper radicular group. Specifically, the Board notes that during the December 2017 VA examination, reflex and sensory testing was normal. The only symptoms noted included active movement against some resistance found for left wrist extension, left finger extension and left finger abduction, and mild bilateral numbness. Based on the diagnostic testing results, the examiner determined that the BUE radiculopathy was mild in severity. Accordingly, as the Veteran’s BUE radiculopathy has not been shown to more nearly approximate moderate incomplete paralysis, higher 40 and 30 percent ratings are not warranted. The Board has considered all other potentially applicable diagnostic codes, but has found that no other diagnostic codes would result in a more favorable finding. In sum, the Board finds that the preponderance of the evidence is against the assignment of rating in excess of 20 percent for the Veteran’s service-connected cervical spine disability throughout the period on appeal. Additionally, the Board finds that the preponderance of the evidence is against the assignment of separate compensable ratings for the Veteran’s BUE radiculopathy prior to December 4, 2017, and in excess of 20 percent disabling thereafter. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5243; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. TDIU As noted above, a claim for a TDIU was raised by the Veteran in a February 2019 letter in which he asserted that he was unable to work due to his service-connected lumbar and cervical spine disabilities. A review of the claims file shows that in February 2016, a VA medical record noted the Veteran was currently working for Federal Express and that he planned on retiring in April 2016. Although VA medical records show the Veteran reported that he was planning on retiring, it is unclear whether the Veteran is currently unemployed. As such, further development of the TDIU claim is necessary to adequately adjudicate this issue on appeal. Therefore, the Veteran should be afforded an opportunity to furnish information about his employment history during the period on appeal to include income he earned or currently earns from any such employment, the number of hours worked and any special circumstances (i.e. protected environment such as a family business or sheltered workshop), so that the Board may make a determination about whether this employment constitutes marginal employment for VA purposes. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran should be specifically requested to provide information as to the income earned from his employment, specify the number of hours per week for any part-time employment, and any special circumstances attendant to such employment. 2. Then, the AOJ must adjudicate the TDIU claim on appeal. If the benefit sought is denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.