Citation Nr: 20046984 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-32 859 DATE: July 14, 2020 ORDER A rating in excess of 20 percent for degenerative disc disease of the cervical spine (previously rated as status post neck injury with fracture of C3), is denied. An earlier effective date of October 10, 2012 for radiculopathy of the left upper extremity associated with degenerative disc disease, rated 20 percent disabling, is granted; subject to the applicable regulations concerning the payment of monetary benefits. An earlier effective date of October 10, 2012 for radiculopathy of the right upper extremity associated with degenerative disc disease, rated 20 percent disabling, is granted; subject to the applicable regulations concerning the payment of monetary benefits. A rating in excess of 20 percent for radiculopathy of the left upper extremity associated with degenerative disc disease is denied. A rating in excess of 20 percent for radiculopathy of the right upper extremity associated with degenerative disc disease is denied. FINDINGS OF FACT 1. At no time during the rating period on appeal has the Veteran’s service-connected degenerative disc disease been manifested by forward flexion of 15 degrees or less, unfavorable ankylosis of the entire cervical spine, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, or associated neurological manifestation (other than the bilateral upper extremity radiculopathy for which separate ratings have been granted). 2. Throughout the appeal period from October 10, 2012, the Veteran has had no more than mild incomplete paralysis of the upper radicular group in the left and right upper extremities associated with his cervical spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5242, 5243. 2. The criteria for a rating of 20 percent disabling (and no higher) from (the earlier effective date of) October 10, 2012, for radiculopathy of the left upper extremity associated with degenerative disc disease have been met; a rating in excess of 20 percent has not been met or approximated at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124A, Diagnostic Code 8710. 3. The criteria for a rating of 20 percent disabling (and no higher) from (the earlier effective date of) October 10, 2012, for radiculopathy of the right upper extremity (major) associated with degenerative disc disease have been met; a rating in excess of 20 percent has not been met or approximated at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124A, Diagnostic Code 8710. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty during August 1976 to December 1978. He served honorably in the United States Navy during Peacetime, including foreign service. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a May 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. During the hearing, the Veteran indicated that at the time, he was not receiving treatment, VA or otherwise, for his cervical spine disability. Also, in addition to his desire to seek VA treatment, through his representative, the Veteran testified that he would like to be scheduled for a new VA examination since the last one of record was in February 2014. In October 2018, the Board remanded the matter on appeal to the RO for additional development because the February 2014 VA examination for the Veteran’s cervical spine disability did not comply with court’s holding in Correia. Specifically, the remand directives requested that range of motion (ROM) testing in degrees on active and passive motion and weight-bearing and nonweight-bearing be conducted. Also, the directives requested that consideration of the Veteran’s reports of flare-ups and to portray any related functional impairment in terms of additional ROM loss. Further, if any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done. Correia v. McDonald, 28 Vet. App. 158 (2016). Since the October 2018 Board remand, there has been substantial compliance by the RO to the above post-remand directives. Specifically, the Board notes that the processing of the remand has led to a new VA examination report that developed additional diagnoses to include for radiculopathy of the upper extremity, and grants of new separate ratings for the Veteran’s bilateral upper extremity radiculopathy. Thus, based on the results of an October 2019 VA examination, the RO has granted the Veteran service connection for radiculopathy of the left upper extremity associated with degenerative disc disease at 20 percent disabling and radiculopathy of the right upper extremity (major) radiculopathy associated with degenerative disc disease at 20 percent disabling, both effective from October 15, 2019. Increased Rating Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, stage ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal. Musculoskeletal Disability Ratings In rating disabilities of the musculoskeletal system, it is necessary to consider, subject to the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40 and 4.45. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of location, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (holding that 38 C.F.R. § 4.50 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weightbearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be “mere speculation.” The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. Finally, it is the intention of the VA rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease (previously rated as status post neck injury with fracture of C3). The Veteran seeks an increased rating for his degenerative disc disease of the cervical spine. He contends that since he was originally rated, his degenerative disc disease has worsened to the extent that it has severely limited his industrial capability. Further, he asserts that his neck would not allow him to look up and climb ladders due to the pain. See VA Form 21-526b dated May 2013 and VA Form 21-0958 dated June 2014. The beginning of the rating period on appeal in this matter is one year prior to the date the Veteran filed to for an increased evaluation of his degenerative disc disease disability: May 21, 2012. Throughout the period on appeal, the Veteran’s degenerative disc disease disability has been rated by AOJ as 20 percent disabling under 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5242 and was based on combined range of motion (CROM) of the cervical spine not greater than 170 degrees. Additional symptom(s) include painful motion upon examination. See RD Narrative dated May 2014; 38 C.F.R. § 4.71A. The General Rating Formula provides that, for Codes 5235 to 5243, a 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71A. Note (2): (See also Plate V.) 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71A. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71A. Note (4): Round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71A. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71A. Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrant a 10 percent rating. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating. 38 C.F.R. § 4.71A, Diagnostic Code 5243. Note (1): For purposes of evaluations under diagnostic code 5253, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71A, Diagnostic Code 5243. As an initial matter, the Board notes the record reflects that the Veteran has been assigned differing cervical spine diagnoses. To the extent that the record contains differing cervical spine diagnoses, the Board will consider the totality of the Veteran’s cervical spine disability picture. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that if it is not possible to separate the effects of a service-connected disability from a nonservice-connected disability, all symptoms should be attributed to the service-connected disability). Based on the evidence of record, the Board concludes that a rating in excess of 20 percent is not warranted for the Veteran’s service-connected cervical spine disability for any part of the appeal period, including when 38 C.F.R. §§ 4.40, 4.45, and Sharp and Correia are considered. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. §§ 4.40, 4.45, 4.71A. Specifically, a rating in excess of 20 percent is not warranted as the preponderance of the evidence is against a finding that the Veteran had forward flexion of his cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine. Sharp, 29 Vet. App. at 33; Correia, 28 Vet. App at 158; 38 C.F.R. §§ 4.40, 4.45, 4.71A. In a February 2014 VA examination, the Veteran was diagnosed with cervical degenerative disc disease. The examination report notes that his cervical spine revealed forward flexion 45 degrees, extension 5 degrees, right lateral and left lateral flexion both at 5 degrees, and right and lateral rotation both at 45 degrees. Thus, the combined ROM for the cervical spine was 150 degrees. The examiner noted that the Veteran’s posture and gait was within normal limits. The Veteran was unable to perform repetitive-use testing with three repetitions due to pain. However, there was no resulting additional limitation in ROM or any functional loss and/or functional impairment of the cervical spine. There was no localized tenderness or pain to palpation for joints/soft tissue and no guarding or muscle spasm of the cervical spine. There are no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the cervical spine. X-rays showed no evidence of current or remote fracture. There was no evidence of radiculopathy, ankylosis, other neurologic abnormalities, invertebral disc syndrome (IVDS) or episodes requiring bed rest. See C&P Exam dated March 2014 and C&P Exam (Onslow) dated March 2014. In an October 2019 VA examination, the Veteran was diagnosed with spondylosis; mild, degenerative disc disease; spinal stenosis; and mild, cervical radiculopathy of the upper radicular nerves. The examiner notes that the Veteran reported that he does not currently work in an occupational setting or worked in sedentary environment where his neck condition would impact his day to day function. Also, the examiner opined that “[a]ctivities and physically demanding jobs and training such as … repetitive climbing, jumping, stooping, kneeling, running long distances, repetitive bending and lifting, prolonged sitting, and fast-paced walking over a period of time would be affected. However, sedentary employment is not affected.” See Capri dated April 2020. The October 2019 examination report notes that the Veteran’s cervical spine revealed forward flexion 35 degrees, extension 35 degrees, right lateral and left lateral flexion both at 5 degrees, and right and lateral rotation both at 65 degrees. Thus, the combined ROM for the cervical spine revealed 210 degrees. Pain was noted, but it did not result in/cause functional loss and there was no pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine (neck). The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. Also, there are no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the cervical spine. The examination was not conducted during flare-ups. There was guarding and muscle spasm of the cervical spine, but it did not result in an abnormal gait or spinal contour. See Capri dated April 2020. Further, the October 2019 report revealed mild, radiculopathy (paresthesias and/or dysesthesias and numbness) of the right and left upper extremities involving the C5/C6 nerve roots (upper radicular group). There was no evidence of ankylosis or other neurologic abnormalities. However, IVDS was shown, but the examiner noted that there were no episodes of acute signs or symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician in the past 12 months. For functional impact, the report indicated that there was no impact on the Veteran’s cervical spine (neck) disability impacting his ability to work. The examiner noted that there was evidence of pain on passive ROM testing of the cervical spine. Also, the examiner marked “N/A” in answering the question of whether there was pain when the joint is used in non-weight bearing. The examiner opined that the Veteran’s mild bilateral cervical radiculopathy of the upper radicular nerves, degenerative changes, spondylosis, cervical stenosis, and IVDS are residuals/progression of his service-connected cervical spine condition. See Capri dated April 2020. Notable, none of the evidence from this period indicates ankylosis, other neurological abnormalities that are not otherwise noted (bilateral upper extremity radiculopathy), or incapacitating episodes associated the Veteran’s service-connected cervical spine disability. The Board has considered whether a higher rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. The Veteran’s functional loss due to cervical spine pain is considered in the currently assigned 20 percent rating. While the Veteran reported cervical spine pain on examination and exhibited ROM pain in extension, and right and left lateral rotation (the record shows no additional functional loss associated with flare-ups), this pain has been taken into consideration in the 20 percent evaluation currently assigned. The record shows no additional functional impairment due to pain such that a higher evaluation would be warranted. Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). For the above-discussed reasons, establishing that the Veteran’s cervical spine has not been ankylosed and the forward flexion is not 15 degrees or less, the preponderance of the evidence is against awarding any rating in excess of 20 percent for the Veteran’s service-connected degenerative disc disease disability. Also, the evidence is against awarding any increase rating on the basis of the rating criteria for impairment associated with IVDS, as the evidence does not suggest incapacitating episodes due to any IVDS in this case. Further, painful motion has been taken into to account in the current 20 percent disabling rating. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. This appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy associated with degenerative disc disease, to include entitlement prior to October 15, 2019. 3. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy associated with degenerative disc disease, to include entitlement prior to October 15, 2019. The Veteran is in receipt of a separate 20 percent rating for radiculopathy of the left and right upper extremity associated with his service-connected degenerative disc disease disability effective from October 15, 2019 under 38 C.F.R. § 4.124A, Diagnostic Code 8710, for neuralgia of the upper radicular group (fifth and sixth cervicals). 38 C.F.R. § 4.124A. The General Rating Formula provides for separate ratings for neurologic manifestations of a back disability. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124A. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis warrants higher ratings. 38 C.F.R. § 4.124A. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124A, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124A establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board finds that a 20 percent rating is warranted for bilateral radiculopathy prior to October 15, 2019, but not before October 10, 2012. Within the one-year look back period, on October 17, 2012, is the first evidence that the Veteran’s cervical spine disorder included radicular symptoms. On October 17, 2012, VA treatment records show that the Veteran presented to an outpatient clinic with complaints of neck and back pain to include tingling in both arms and hands. The Veteran stated that his current medical issue was caused by an elevator accident on October 10, 2012. The Board equates these symptoms with mild incomplete paralysis. However, since that incident, a higher rating for radicular symptoms is not warranted as, other than persistent complaints of neck pain, the record lacks significant complaints or findings of neurological symptoms to include of numbness or tingling of the extremity until July 2018. See Capri dated April 2020 and Capri dated May 2019. In a 2014 VA examination, the report revealed no evidence of radiculopathy or other neurological abnormalities. There was no muscle atrophy, and reflex and sensory examination were all normal. See C&P Exam dated March 2014. In a July 2018 VA treatment note, the Veteran presented in the emergency department with complaints of body aching, neck discomfort and radiation discomfort from the neck to the right hand after using a jack hammer during the performance of his work. The examiner noted that the Veteran had “radiation discomfort and numbness, which includes the trapezius to the arm, forearm and hand.” Further, the examiner’s impression was that this activity had aggravated the Veteran’s cervical spine. See Capri dated May 2019. The Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s service-connected radiculopathy of the left and right upper extremity associated with degenerative disc disease disability for any part of the appeal period. The preponderance of the evidence on record is against a finding that the Veteran’s radiculopathy of the left and right upper extremity disability more nearly approximated moderate incomplete paralysis at any time, thereby warranting a rating of 40 percent for the major extremity and 30 percent for the minor extremity. As noted, the Veteran’s reports of radiculopathy were intermittent for much of the appeal period. Additionally, in an October 15, 2019 VA examination, the report revealed mild paresthesias and/or dysesthesias and numbness involving the C5/C6 nerve roots for the left and right upper extremity. There were no other signs or symptoms of radiculopathy, no muscle atrophy, and the deep tendon reflexes (DTRs) and sensory examinations were all normal. In terms of functional impact, the examiner opined that the Veteran does not currently have a peripheral nerve condition. See Capri dated April 2020. Thus, the Board finds that the record shows that in addition to persistent complaints of neck pain, the Veteran on at least two occasions (October 2012 and July 2018), complained of tingling and/or numbness of one or both upper extremity throughout the appeal period. Resolving reasonable doubt in the Veteran’s favor, an initial 20 percent evaluation for radiculopathy of the left and right extremity associated with degenerative disc disease is warranted throughout the appear period from (the earlier effective date of) October 10, 2012, the date that is within the one year of the look back period from the Veteran’s claim for an increased rating (May 21, 2013). However, rating in excess of 20 percent for either upper extremity radiculopathy at any time is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nawatha M. Duncan-Hayes 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.